New guidelines for voluntary jurisdiction proceedings in corporate matters

Legislative Decree 168/2003 established Courts sections specialised in industrial property matters (now replaced by sections specialised in business matters, governed by Article 2 of Legislative Decree n. 1/ 2012, converted, with amendments, into Law n. 27/2012). In particular, these Courts are competent with regard to “cases and proceedings relating to corporate relations“, which certainly also include proceedings of voluntary jurisdiction.

However, despite the fact that more than a decade has passed since the creation of the specialised sections, it is still not clear the exact demarcation line between proceedings of voluntary jurisdiction and litigation proceedings devolved to the functional competence of the specialised sections.

In the absence of a legislative definition, voluntary jurisdiction in corporate matters is structured like a judicial procedure (today ruled by Articles 737 et seq of the Italian Civil Procedure Code, after the failed attempt of the Legislative Decree 5/2003 to specifically regulate it) even if voluntary jurisdiction is not based on the injury of a right and therefore technically it is not a legal dispute. The above statement implies that the order of the Court can always be modified, revoked or subject to an appeal or to the complaint.

Therefore, the practical problem is to understand which are the “disputes” that give rise to a lawsuit and which are the ones that imply a voluntary jurisdiction.

In such uncertainty, in December 2018, the business section of the Court of Milan published very useful guidelines.

The above/mentioned guidelines, based on the type of order requested to the Judge, group analytically the proceedings/disputes of voluntary jurisdiction into three macro categories depending on whether the requested Court order are directed to:

  • integrate the normative cases;
  • compensate for the inertia or stalemate of the corporate bodies;
  • remove serious and harmful management irregularities.

At the same time the Court clearly stated that the following proceedings/disputes give rise to an ordinary lawsuit:

  • the revocation of the liquidators;
  • the creditors’ opposition to: reduction of the share capital; heterogeneous transformation; revocation of the state of liquidation of the company; merger and spin-off of the company;
  • the evaluation of the share value of the withdrawn or excluded shareholder in case the assessment made by the company is wrong or manifestly unfair.

(On one hand) The aforesaid guidelines will certainly facilitate the work of the professionals, generating a direct benefit both to clients and consultants, who in filling the legislative gaps will be able to rely on clear and analytical guidelines. (On the other hand) the Courts will probably see a significant reduction of technical debates with regard to the procedure chosen by the plaintiff

Carlo Riso