The recent corporate law reform introduced different types of financial instruments, while aiming at increasing the recourse to capital markets and meeting the diversified requests of emerging categories of professional and sophisticated investors. The aforementioned financial instruments came to fall in a wide grey zone between stock and corporate bonds, although they differ from both because destined to specific professional investors instead of retail investors. The following research presents an analysis of some particular kinds of financial instruments, called “participating financial instruments” by artt. 2346, 2349 and 2351, civil code. The first part of the paper explores the content of the adjective “participating” because it is not clear whether “participating” is to be referred to the social organization or to the exposure to risk that these instruments entail. The latter interpretation eventually prevails. Consequently, “participating” is referred to participation, through the financial instrument, to corporate losses or profits. The issue of participating financial instruments is considered one among other equity-raising activities because the contributions from the instruments flow in the equity and, consequently, are exposed to risk, although the investor does not have the right to a final repayment. The relationship between issuer and subscriber of participating financial instruments goes beyond the credit-debt phenomenon, which instead pertains to bonds and securities similar to bonds, ruled by art. 2411, co. 3, civil code. In fact, the previous instruments entail a repayment obligation, although depending on the level of corporate losses or profits. Participating financial instruments are considered quasi-equity. This legal nature justifies the legislative provision that leaves to contractual freedom the opportunity of the investor’s participation in the profits and, in case, some management rights (art. 2351 civil code). Moreover, the paper analyzes different typologies of possible subscriber contributions -in particular the characteristics of the contribution of services- as well as addressing their financial accounting and reporting in the balance sheet and the different and complex purposes that the issue of participating financial instruments intends to accomplish.
Innocenti, F. (2009). Gli strumenti finanziari partecipativi.
|Titolo:||Gli strumenti finanziari partecipativi|
|Data di pubblicazione:||17-feb-2009|
|Anno Accademico:||A.A. 2007/2008|
|Corso di dottorato:||Diritto commerciale|
|Settore Scientifico Disciplinare:||Settore IUS/04 - Diritto Commerciale|
|Tipologia:||Tesi di dottorato|
|Citazione:||Innocenti, F. (2009). Gli strumenti finanziari partecipativi.|
|Appare nelle tipologie:||07 - Tesi di dottorato|