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Navigating Expert Determination clauses in Italian M&A transactions: interpretations and legal perspectives

In the aftermath of an M&A transaction, a dispute can sometimes arise over the calculation of the portion of the purchase price (the “earn-out”) that is deferred and contingent upon the achievement of certain performance targets. In such cases, an expert determination clause is usually the most immediate and effective solution. In practice, the parties...

None of your business: the board of directors is not liable if it proves its due diligence in course of action. But what happens if the company is a bank?

ABSTRACT: The applicability of the business judgment rule and the “presumption of guilt” to directors of banking companies in the light of the judgment no. 5347/2022 of the Italian Corte di Cassazione   The business judgment rule and its limitations According to the business judgment rule (‘BJR’), directors’ management choices are unquestionable by the court,...

The registration tax must be applied pursuant to the intrinsic nature and the legal effects of the deed subject to taxation

ABSTRACT: In judgment no. 18300 of June 7, 2022, the Corte di Cassazione ruled that the registration act must be applied pursuant to the intrinsic nature and the legal effects of the deed submitted for registration and not on the basis of external elements A foreign company has purchased 100% of the social quotas of...

On the value of Instant messages as evidence in civil proceedings: the point of view of the Court of Milan and of the Supreme Court

With a judgment handed down at the end of last January, the Court of Milan has specifically addressed the issue of the probative value of Whatsapp messages in civil proceedings, sharing the Supreme Court orientation in similar cases. In particular, within a dispute on the alleged breach of a business transfer contract, a claimant filed...

Where do you pay? A recent Italian Court of Cassation decision on taxation

ABSTRACT – According to a recent judgment of the Italian Court of Cassation[1], a company resident abroad for tax purposes is subject to the Italian tax regime if the main decisions relating to its general management and business affairs are adopted in Italy.   COMMENT – Companies’ residence for tax purposes in the Italian legal system The...

According to the Italian Court of Cassazione, the Chairman of the board of directors of a corporation cannot be at the same time an employee of the same corporation

On the subject of the coexistence of an employment relationship and a corporate office held by the same person, the Court of Cassazione has extended the principles developed in relation to the office of sole director to that of chairman of the board of directors of a corporation – in the specific case, of a cooperative – affirming the absolute incompatibility between the latter office and the employment relationship with the same corporation.

Breach of the shareholders’ agreement: which jurisdiction when the company is based abroad?

According to a recent judgement of the Italian Corte di Cassazione, the dispute arising from the breach of the shareholders’ agreement by the Italian shareholder is subject to the Italian jurisdiction even when the registered office of the company is located abroad, under the rule of the defendant’s domicile.

The applicability of the Business Judgement Rule to directors’ organisational choices

According to the Court of Rome, the application tout court of the Business Judgement Rule may not be sufficient to exclude the directors’ liability in case of breach of the their duty to provide the company with an adequate organisational structure according to Italian Law.

Do acquired companies survive in merger transactions? Sometimes it happens

According to a recent judgment of the Italian Corte di Cassazione[1], although – as a general rule – in merger by acquisition transactions the acquired company loses its legal standing, such a company can still be sued whenever this is needed to protect a counterparty that, without any fault, is unaware of the merger.

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