The special rights other than shares in cross-border mergers of limited liability companies within the European Union. A perspective from the Spanish Law

The present research aims to study the special rights other than shares in Spanish Law and the protection of their holders in cross-border mergers of limited liability companies within the European Union frame. Special rights other than shares are recognised as an independent legal category within legal systems of some EU Member States, such as Germany or Spain, through the implementation of the Third Directive 78/855/CEE concerning mergers of public limited liability companies. The above-cited Directive contains a special regime of protection for the holders of securities, other than shares, to which special rights are attached, consisting of being given rights in the acquiring company, at least equivalent to those they possessed in the company being acquired. This safeguard is to highlight the intimate connection between this type of rights and the company whose extinction determines the existence of those. Pursuant to the Directive 2005/56/CE on cross-border mergers of limited liability companies, each company taking part in these operations shall comply with the safeguards of members and third parties provided in their respective national law to which is subject. In this regard, the protection for holders of special rights other than shares shall be ruled by the domestic M&A regime. As far as Spanish Law are concerned, holders of these special rights are recognized a right of merger information, in the same terms as shareholders, as well as equal rights in the company resulting from the cross-border merger. However, these measures are not enough guarantee for a suitable protection, thus considering those holders of special rights as special creditors, sometimes it will be necessary to go to the general protection regime for creditors. In Spanish Law, it would involve the recognition of right to the merger opposition, whose exercise would prevent the operation was completed until ensuring equal rights.

Gli assetti proprietari e di controllo nell'agroalimentare italiano

The recent default of important Italian agri-business companies provides a challenging issue to be investigated through an appropriate scientific approach. The events involving CIRIO, FERRUZZI or PARMALAT rise an important research question: what are the determinants of performance for Italian companies in the Italian agri – food sector? My aim is not to investigate all the factors that are relevant in explaining performance. Performance depends on a wide set of political, social, economic variables that are strongly interconnected and that are often very difficult to express by formal or mathematical tools. Rather, in my thesis I mainly focus on those aspects that are strictly related to the governance and ownership structure of agri – food companies representing a strand of research that has been quite neglected by previous scholars. The conceptual framework from which I move to justify the existence of a relationship between the ownership structure of a company, governance and performance is the model set up by Airoldi and Zattoni (2005). In particular the authors investigate the existence of complex relationships arising within the company and between the company and the environment that can bring different strategies and performances. They do not try to find the “best” ownership structure, rather they outline what variables are connected and how they could vary endogenously within the whole economic system. In spite of the fact that the Airoldi and Zattoni’s model highlights the existence of a relationship between ownership and structure that is crucial for the set up of the thesis the authors fail to apply quantitative analyses in order to verify the magnitude, sign and the causal direction of the impact. In order to fill this gap we start from the literature trying to investigate the determinants of performance. Even in this strand of research studies analysing the relationship between different forms of ownership and performance are still lacking. In this thesis, after a brief description of the Italian agri – food sector and after an introduction including a short explanation of the definitions of performance and ownership structure, I implement a model in which the performance level (interpreted here as Return on Investments and Return on Sales) is related to variables that have been previously identified by the literature as important such as the financial variables (cash and leverage indices), the firm location (North Italy, Centre Italy, South Italy), the power concentration (lower than 25%, between 25% and 50% and between 50% and 100% of ownership control) and the specific agri – food sector (agriculture, food and beverage). Moreover we add a categorical variable representing different forms of ownership structure (public limited company, limited liability company, cooperative) that is the core of our study. All those variables are fully analysed by a preliminary descriptive analysis. As in many previous contributions we apply a panel least squares analysis for 199 Italian firms in the period 1998 – 2007 with data taken from the Bureau Van Dijck Dataset. We apply two different models in which the dependant variables are respectively the Return on Investments (ROI) and the Return on Sales (ROS) indicators. Not surprisingly we find that companies located in the North Italy representing the richest area in Italy perform better than the ones located in the Centre and South of Italy. In contrast with the Modigliani - Miller theorem financial variables could be significant and the specific sector within the agri – food market could play a relevant role. As the power concentration, we find that a strong property control (higher than 50%) or a fragmented concentration (lower than 25%) perform better. This result apparently could suggest that “hybrid” forms of concentrations could create bad functioning in the decision process. As our key variables representing the ownership structure we find that public limited companies and limited liability companies perform better than cooperatives. This is easily explainable by the fact that law establishes that cooperatives are less profit – oriented. Beyond cooperatives public limited companies perform better than limited liability companies and show a more stable path over time. Results are quite consistent when we consider both ROI and ROS as dependant variables. These results should not lead us to claim that public limited company is the “best” among all possible governance structures. First, every governance solution should be considered according to specific situations. Second more robustness analyses are needed to confirm our results. At this stage we deem these findings, the model set up and our approach represent original contributions that could stimulate fruitful future studies aimed at investigating the intriguing issue concerning the effect of ownership structure on the performance levels.

I diritti particolari dei soci nelle S.r.l.

Il tema oggetto della presente tesi di dottorato trae spunto dall'analisi dell'art. 2468 c.c. nel quale può dirsi contenuto il nucleo fondamentale della disciplina della partecipazione sociale. In primo luogo vi è un'analisi comparata dell'istituto in esame con quelli previsti negli altri paesi europei. Dopo una breve analisi di diritto comparato ci si è concentrati sulla legislazione italiana ed, in particolare, l'elaborato cerca di dare una risposta ai seguenti interrogativi: a) quali sono i “particolari diritti” ex art. 2468 c.c.? b) si può parlare di “categorie speciali di partecipazioni”? Con riferimento al primo interrogativo va considerato che il modello legale prevede che i diritti particolari attribuibili ai soci riguardano l’amministrazione della società o la distribuzione degli utili. Tale disciplina sussiste quando l’atto costitutivo attribuisce i particolari diritti senza disporre nulla sulla loro trasferibilità, modificabilità ed inerenza alla partecipazione sociale piuttosto che alla persona del socio. Ci si è chiesti quali siano i confini delle due categorie espressamente previste dall’art. 2468, 3 c.c. e se tale previsione sia tassativa piuttosto che esemplificativa, aprendosi quindi la strada alla libera determinabilità dei diritti sociali, alla stregua di quanto sancisce l’art. 2348, 2 c.c., in merito alle azioni “speciali”. Si giunge così alla conclusione che la previsione sia esemplificativa e che anche nelle s.r.l. le parti sono libere di attribuire ai soci diritti sociali diversi da quelli derivanti dal modello legale, nei limiti derivanti da specifiche norme imperative. Nel secondo capitolo sono stati approfonditi i principi dettati dall’art. 2468 c.c., la natura di tali "particolari diritti" ed i loro profili di qualificazione nonché le loro esplicazioni contenutistiche Nel terzo capitolo si è analizzato cosa accade ai "particolari diritti" in caso di vicende modificative. Nel quarto capitolo poi è stato affrontata la controversa questione relativa alla possibilità di creare delle “categorie di quote”.

La fusión transfronteriza de sociedades en el derecho europeo.

La libertad de establecimiento y la movilidad de las empresas juegan un papel fundamental en el proceso comunitario de integración. Las empresas buscan nuevas formas de cooperación e integración que les permitan ocupar cuotas de mercado cada vez más importantes. De entre las modalidades de integración y cooperación que tienen a su disposición, la fusión transfronteriza de sociedades es, sin duda, una de las más relevantes. Es evidente que las fusiones de sociedades pertenecientes a Estados miembros distintos podrían tener una enorme importancia en el proceso de integración del mercado único. Sin embargo, la posibilidad de llevar a cabo con éxito una fusión transfronteriza en el ámbito comunitario era improbable hasta época reciente. Dos tipos de impedimentos la dificultaban: por una parte, obstáculos a la libertad de establecimiento por parte de los ordenamientos jurídicos de los Estados miembros; por otro, obstáculos de Derecho internacional privado. En cambio, hoy la mayor parte de estos impedimentos han sido superados gracias, en primer lugar, al progresivo reconocimiento del derecho de establecimiento de las sociedades por el Tribunal de Justicia, y en segundo, a la importante Directiva 2005/56/CE relativa a las fusiones transfronterizas de sociedades de capital. Esta Directiva impone a los Estados miembros una serie de normas de mínimos de derecho material a fin de armonizar la tutela de los intereses de los sujetos implicados más débiles (sobre todo, los trabajadores y los socios). De igual manera, establece una serie de normas de conflicto para resolver la cuestión de la ley aplicable a las fusiones transfronterizas. Este trabajo tiene como objetivo principal valorar la relevancia de los pronunciamientos del Tribunal de Justicia y de las actuaciones del legislador europeo orientados a impedir las restricciones a las fusiones transfronterizas de sociedades en el territorio comunitario.

Securitization and Special Purpose Vehicles in an International Setting: a Systemic View

The present work tries to display a comprehensive and comparative study of the different legal and regulatory problems involved in international securitization transactions. First, an introduction to securitization is provided, with the basic elements of the transaction, followed by the different varieties of it, including dynamic securitization and synthetic securitization structures. Together with this introduction to the intricacies of the structure, a insight into the influence of securitization in the financial and economic crisis of 2007-2009 is provided too; as well as an overview of the process of regulatory competition and cooperation that constitutes the framework for the international aspects of securitization. The next Chapter focuses on the aspects that constitute the foundations of structured finance: the inception of the vehicle, and the transfer of risks associated to the securitized assets, with particular emphasis on the validity of those elements, and how a securitization transaction could be threatened at its root. In this sense, special importance is given to the validity of the trust as an instrument of finance, to the assignment of future receivables or receivables in block, and to the importance of formalities for the validity of corporations, trusts, assignments, etc., and the interaction of such formalities contained in general corporate, trust and assignment law with those contemplated under specific securitization regulations. Then, the next Chapter (III) focuses on creditor protection aspects. As such, we provide some insights on the debate on the capital structure of the firm, and its inadequacy to assess the financial soundness problems inherent to securitization. Then, we proceed to analyze the importance of rules on creditor protection in the context of securitization. The corollary is in the rules in case of insolvency. In this sense, we divide the cases where a party involved in the transaction goes bankrupt, from those where the transaction itself collapses. Finally, we focus on the scenario where a substance over form analysis may compromise some of the elements of the structure (notably the limited liability of the sponsor, and/or the transfer of assets) by means of veil piercing, substantive consolidation, or recharacterization theories. Once these elements have been covered, the next Chapters focus on the regulatory aspects involved in the transaction. Chapter IV is more referred to “market” regulations, i.e. those concerned with information disclosure and other rules (appointment of the indenture trustee, and elaboration of a rating by a rating agency) concerning the offering of asset-backed securities to the public. Chapter V, on the other hand, focuses on “prudential” regulation of the entity entrusted with securitizing assets (the so-called Special Purpose vehicle), and other entities involved in the process. Regarding the SPV, a reference is made to licensing requirements, restriction of activities and governance structures to prevent abuses. Regarding the sponsor of the transaction, a focus is made on provisions on sound originating practices, and the servicing function. Finally, we study accounting and banking regulations, including the Basel I and Basel II Frameworks, which determine the consolidation of the SPV, and the de-recognition of the securitized asset from the originating company’s balance-sheet, as well as the posterior treatment of those assets, in particular by banks. Chapters VI-IX are concerned with liability matters. Chapter VI is an introduction to the different sources of liability. Chapter VII focuses on the liability by the SPV and its management for the information supplied to investors, the management of the asset pool, and the breach of loyalty (or fiduciary) duties. Chapter VIII rather refers to the liability of the originator as a result of such information and statements, but also as a result of inadequate and reckless originating or servicing practices. Chapter IX finally focuses on third parties entrusted with the soundness of the transaction towards the market, the so-called gatekeepers. In this respect, we make special emphasis on the liability of indenture trustees, underwriters and rating agencies. Chapters X and XI focus on the international aspects of securitization. Chapter X contains a conflicts of laws analysis of the different aspects of structured finance. In this respect, a study is made of the laws applicable to the vehicle, to the transfer of risks (either by assignment or by means of derivatives contracts), to liability issues; and a study is also made of the competent jurisdiction (and applicable law) in bankruptcy cases; as well as in cases where a substance-over-form is performed. Then, special attention is also devoted to the role of financial and securities regulations; as well as to their territorial limits, and extraterritoriality problems involved. Chapter XI supplements the prior Chapter, for it analyzes the limits to the States’ exercise of regulatory power by the personal and “market” freedoms included in the US Constitution or the EU Treaties. A reference is also made to the (still insufficient) rules from the WTO Framework, and their significance to the States’ recognition and regulation of securitization transactions.