societario

LGV WILL ATTEND A MEETING AT THE CONSULATE OF SOUTH KOREA

12/05/2017

Founding partner Luigi Goglia and senior associates Ju Yeon Park and Alessandro Sassone, representing LGV, will attend the conference organized by the consulate of the Republic of Korea in Milan on May 16, 2017 in the presence of the new Korean Ambassador and the Korean business representatives present in the territory.

 

The meeting is but one moment in the decade long process of cooperation between LGV and South Korea; this relationship has formed due to the activity of the senior associate Ms. Ju Yeon Park.

Mr. Goglia will have the honor to open the meeting by introducing the topics of the morning; to follow the speakers will alternate on the stage to talk about the most current legal issues; in particular Ms. Ju Yeon Park will discuss privacy and new obligations arising from the implementation of the Community regulation, while Alessandro Sassone will discuss international contracts.


THE SUPREME COURT RULES ON MANDATE CONTRACTS GOVERNING THE CLIENT-ATTORNEY RELATIONSHIP

18/01/2017

A corporation that has been removed from the companies register cannot appeal to the Supreme Court in that such company must be considered as no longer existing and, therefore, bereft of procedural legitimacy and interest in the appeal and without power to confer a special power of attorney for the judgment before the Supreme Court.


 

With judgment no. 6780 of 2016, the Italian Supreme Court declared that the petition filed by a company that had been removed from the companies register was inadmissible. According to the Court, a power of attorney must be conferred by a company that is not “legally extinct and without legitimacy to commence proceedings in application of art. 2495 of the Civil Code”.

The above mentioned judgments follows the Court’s ruling n. 15295 of 2014, in which the Court stated the following principle: the party that has joined proceedings via its attorney and has been affected by the events regulated by art. 299 of the Code of Civil Procedure (i.e. death or loss of procedural capacity), and that moreover has not declared or notified any of the aforesaid events pursuant to art. 300 of the Code of Civil Procedure, nevertheless continues to be represented by the same attorney (in Italian, this is known as the “principio di ultrattività del mandato”, which may loosely be translated as “principle of survival of the attorney’s mandate”). The legal position is stabilized also for the subsequent suspension and appeal stages, unless: in the course of the appeal, (i) the heirs of the defunct party join the proceedings; (ii) if the party was legally incapacitated, its legal representative joins the proceedings; (iii) the party’s attorney gives notice of the events pursuant to art. 300 of the Code of Civil Procedure.

The direction taken in 2014 is not undermined by the 2016 judgment, in so far as the latter is concerned with pointing out a different principle, that is that the attorney’s mandate cannot survive when an appeal is lodged before the Supreme Court.

In order to correctly petition the Court, the attorney requires a special power of attorney for appearing in judgment before the Court, as required by Art. 365 of the Code of Civil Procedure. Such power of attorney, however, cannot be conferred by the legal representative of an extinct company, because he or she has lost all powers of representation in consequence of the extinction of the corporate entity.


CRITERION OF INTERPRETATION OF CORPORATE BYLAWS

13/09/2016

The clause of a public limited company’s bylaws requiring a wide majority for the resolution having as object the issues concerning certain matters is aimed at protecting minorities in order to allow the latter to have the opposition power to preserve the balance existing inside the company. Therefore, an interpretation of this clause which allows its amendment through a most limited majority seems contradictory, in the light of the good faith criterion and on the basis of the common intention of the parties, with the consequent annulment of the relevant resolution. The clause of the bylaws protecting the minorities imposing a wide majority for the resolution concerning certain issues cannot be modified through a limited majority.


 

The First Civil Section of the Supreme Court, with decision no. 4967 of March 14, 2016, returned to the controversial matter of interpretation of the bylaws.

The lawsuit concerned the challenge by certain shareholders of a Public Limited Company (hereinafter the “Company”) of a resolution of the extraordinary shareholders meeting adopted in September 2001, which modified article 17 of the relevant bylaws. Article 17 of the bylaws required a wide majority — equal to 60% of the share capital — in case of a shareholders meeting that, in the first and second call, resolves upon certain items on the agenda, expressly listed, among which the amendment of article 17 of the bylaws did not appear.

The extra-ordinary shareholders meeting of the Company proceeded therefore with the amendment of article 17 of the bylaws according to the majority provided by art. 2369 of Italian Civil Code (in its former provision before the relevant amendment occurred by Legislative Decree 6/2003) and, therefore, through a majority equal to over one third, lower than that provided in the same article 17.

The shareholders challenged the resolution before the Court and the Court of Appeal in order to obtain the relevant annulment for the lack of observance of the majorities provided herein.

The Court of Appeal rejected the appeal submitted by the minority shareholders of the Company, while the Supreme Court recalled the laws regarding the interpretation of a contract (art. 1362 and following of Italian Civil Code) in order to annul both the challenged decision and, resolving on the merit, the part of the resolution of the Company which amended article 17 of the bylaws without observing the majority provided hereto.

The Supreme Court deemed that the interpretation of the bylaws pursuant to  good faith, in accordance with the provisions of articles 1369 and 1366 of Italian Civil Code determines that, in presence of a clause of the bylaws which protects the minority of the shareholders providing for a wide majority of votes in case of resolution of the shareholders regarding certain matters, even the resolutions aiming at amending the clauses in which the wider majorities are provided must be subject to the same wide majorities. As a consequence, a non-qualified majority of the shareholders cannot on its own, even in case of lack of provision of the bylaws, modify the clause governing such wide majorities.

This decision of the Supreme Court has crucial value since it refers to the debate regarding the applicability to the bylaws of the “subjective” interpretative criterion provided by the general discipline of contract law (articles 1362-1366 of Italian Civil Code), aimed at giving more value to the purpose followed by the parties and to the behaviors of the latter after the execution of the contract, instead of the objective criterion provided for the interpretation of the law in general (article 12 preliminary disposition of Italian Civil Code), based, above all, on the literal meaning of the single provisions.