The research concerns the limits on contractual freedom in corporate bonds issues pursuant to the recent corporate law reform. First part of the paper studies the procedure of corporate bonds issuing provided the traditional Italian double limit regarding companies allowed to the issuance and the measure of it. The legal choice to maintain a cap to the issuing of bonds is critically reviewed, especially with regard to the case whether this maximum amount may be exceeded thanks to selected institutional investors (under control of the authorities in charge), who undertake the issue and guarantee the punctual and due final cash settlement towards those retail investors who are not sophisticated. This peculiar obligation of institutional investors is compared as well with a similar rule provided for small corporations (i.e. s.r.l., art. 2473, civil code), in order to demonstrate that it is a specific kind of accountability for someone else debt, different from a liability for violation of intermediary duties but even different both from the warranty for debtor’s solvency guaranteed to the transferee by the transferor of a credit (art. 1265, civil code) and from the liability of the transferor of a negotiable bill by endorsement. Institutional investors liability pursuant to art. 2412, 2 par., civil code is due to their choice to give up a restrictive selling policy in favour of a retail offer: this determines who, to whom and to what extent institutional investors may be liable. The paper also points out in what way this case is diverse from the selling restrictions the issuer or the lead manager endow for the offer of bonds. Second part of the essay is involved in the various kind of corporate bonds, even with some comparison with French, German, UK and US law. The aim is to clarify how many different negotiable instruments similar to the bonds may be ruled pursuant to the new art. 2411 civil code and not pursuant to the new rules provided for so called “strumenti finanziari partecipativi” by art. 2346, 2351 civil code. The standard used is the one of “repayable funds under the legal and contractual conditions applicable” used to describe the business of taking repayable funds exceptionally allowed to persons different from credit institutions. This means a different point of view of the usual coincidence between bonds and sum to be repaid as provide for mortgage. Securities similar to bonds and ruled as bonds are identified trough the examination of those kinds expressly described by the law, with special regard to those whose final cash settlement is influenced by corporate losses or profits. Moreover the paper examines the chance to deem as bonds some peculiar securities repayable with reference to an index, or only in a winding up of the company, or with commodities other than money. The category of debentures in this way set forth is finally reconsidered in the prospective of securities and markets regulations, where the aim of the law may differ from corporate law and so lead to rearrange this category.

Ciocca, N. (2008). Autonomia privata ed emissione di obbligazioni nella società per azioni.

Autonomia privata ed emissione di obbligazioni nella società per azioni

CIOCCA, NICOLETTA
2008-08-28

Abstract

The research concerns the limits on contractual freedom in corporate bonds issues pursuant to the recent corporate law reform. First part of the paper studies the procedure of corporate bonds issuing provided the traditional Italian double limit regarding companies allowed to the issuance and the measure of it. The legal choice to maintain a cap to the issuing of bonds is critically reviewed, especially with regard to the case whether this maximum amount may be exceeded thanks to selected institutional investors (under control of the authorities in charge), who undertake the issue and guarantee the punctual and due final cash settlement towards those retail investors who are not sophisticated. This peculiar obligation of institutional investors is compared as well with a similar rule provided for small corporations (i.e. s.r.l., art. 2473, civil code), in order to demonstrate that it is a specific kind of accountability for someone else debt, different from a liability for violation of intermediary duties but even different both from the warranty for debtor’s solvency guaranteed to the transferee by the transferor of a credit (art. 1265, civil code) and from the liability of the transferor of a negotiable bill by endorsement. Institutional investors liability pursuant to art. 2412, 2 par., civil code is due to their choice to give up a restrictive selling policy in favour of a retail offer: this determines who, to whom and to what extent institutional investors may be liable. The paper also points out in what way this case is diverse from the selling restrictions the issuer or the lead manager endow for the offer of bonds. Second part of the essay is involved in the various kind of corporate bonds, even with some comparison with French, German, UK and US law. The aim is to clarify how many different negotiable instruments similar to the bonds may be ruled pursuant to the new art. 2411 civil code and not pursuant to the new rules provided for so called “strumenti finanziari partecipativi” by art. 2346, 2351 civil code. The standard used is the one of “repayable funds under the legal and contractual conditions applicable” used to describe the business of taking repayable funds exceptionally allowed to persons different from credit institutions. This means a different point of view of the usual coincidence between bonds and sum to be repaid as provide for mortgage. Securities similar to bonds and ruled as bonds are identified trough the examination of those kinds expressly described by the law, with special regard to those whose final cash settlement is influenced by corporate losses or profits. Moreover the paper examines the chance to deem as bonds some peculiar securities repayable with reference to an index, or only in a winding up of the company, or with commodities other than money. The category of debentures in this way set forth is finally reconsidered in the prospective of securities and markets regulations, where the aim of the law may differ from corporate law and so lead to rearrange this category.
A.A. 2006/2007
Diritto commerciale
18.
società per azioni; rimborso condizionato all’andamento economico della società; obbligazioni; strumenti finanziari partecipativi; bonds; investitori professoniali soggetti a vigilanza prudenziale; art. 2411 c.c.; art. 2412 c.c.; reverse convertible bonds; obbligazioni subordinate
Settore IUS/04 - Diritto Commerciale
Italian
Tesi di dottorato
Ciocca, N. (2008). Autonomia privata ed emissione di obbligazioni nella società per azioni.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/2108/589
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