Juridisk Institut

Corporate Abuse and Shadow Directorship: A comparative overview of the UK and Italy

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The formulation of effective measures to hold those who exercise a significant degree of influence or control over the company accountable for their conduct has
caused increasing concern in Europe. Since 2013, with the G8 Action Plan, the UK Government considered the transparency and accountability of those controlling a
company as a fundamental tool to tackle abuse of the corporate structures and to establish high standards of business behaviour and better corporate governance
practices. It is my view that an abuse of a company can arise not just when a shareholder is able to hide behind the corporate veil to escape personal and unlimited responsibility, but also when a shareholder - directly or indirectly- carrie out the management functions, without being entitled according to the mandatory
rules that outline the governance of the limited liability companies. It is the appropriation of the directors’ powers that constitutes an abuse as breach of the
statutory provisions that, by determining the division of powers within a company, set out its organisational structure. This type of abuse of the corporate form can be found in the shadow directorship provided by the English legal system and in the de facto directorship as described by Italian case law and doctrine. To consider the phenomenon as an abuse is coherent with the effects that the two legal systems give to the figure. Shadow and de facto directors are not directors, but are treated as such in order to prevent them from avoiding the duties and liabilities that the regulations place to guarantee the correct exercise of the management functions. The paper develops a comparative analysis of the English and Italian jurisdictions on the matter dealing with three main issues: first, the ways in which both urisdictions have respectively defined, interpreted and applied the concept of a shadow director and de facto director; second, the civil duties and liabilities
attached to them and their theoretical basis and, third, the extent to which existing rules and principles provide satisfactory accountability.
StatusUnder udarbejdelse - 2020

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