Preservation order in an arbitration procedure granted by Court of Brescia

The assets of the managing director were sequestrated as part of arbitration procedure aimed at ascertaining of director’s responsibility for bad management.

By order of 31 July 2019, the Court of Brescia, following the action filed by one of the shareholders of a corporation assisted by Andrea Frangipane and Francesco Inturri, Partners and lawyers, ordered the “sequestration of movable and immovable property and credit of any kind, owned by and in any case pertaining” the managing director of the company, up to an amount of more than one million euro.

The proceeding was instituted before the Court when the arbitration proceeding was already pending, also promoted by the same shareholder, in order to penalize the managing director for bad management, the consequent compensation of damages caused to the company and the definitive revocation from the management position.

The Court, having found the appeal admissible, stated that there were “well-founded indications of numerous management irregularities“, noting from the facts relied on and documented by the claimant in the arbitration proceedings, and reiterated in the injunctive proceeding, that the management of the company by the CEO was “distorted by private needs (“familiar”)“; therefore, in essence, recognizing in the multiple conduct of the latter, at the moment also referred for trial by the Criminal Court for charges relating to facts in part coinciding with those subject to the civil liability action, elements of such gravity as to justify the granting of the injunctive measure.

The Court considered that the appeal filed by the shareholder showed “a series of charges punctually outlined in terms of allegation and supported by copious documentation” such as to make it considered acquitted, in accordance with a well-established principle of case law invoked by the shareholder itself, shared by the Judge, that “with regard to the liability of directors, the burden of proof falls on the director, who has the burden of proving to have correctly fulfilled the obligations deriving from the mandate”; the latter burden is not punctually fulfilled by the director.