AGENCY PROBLEMS IN TROUBLED COMPANIES: A UK-ITALY COMPARISON.

In this discussion I will try to understand if it is possible to talk about a distribution of power between constituencies and how it is, eventually, regulated the coexistence of a plurality of interests under the U.K. system and under the Italian law. In this regard, I will focus on a particular “step” of the companies’ life, that is far from the physiological phase: when a company is “in troubles”. Necessary, speaking about corporate power in the pathological stage of companies presumed to provide for a description of this power distribution between the actors when companies are normally carrying on business activities. The approach I want to suggest to perform this analysis is the so-called doctrine of agency problems, that can read the relationships between the various actors, beyond what is suggested by law, in economic terms, that is in terms of agency costs. As a result, the starting point in looking for the object above is an economic one, that is a theoretical model that allows to understand, in principle, the relationship between ownership/risk and power of control and the rationales connected with these issues. More specifically, this ideal model is identified in a company where only the members risk and have the property of the company. Are also the same members to make business decisions. Then, the interest that is pursued is that of their ownership because they are solely to exercise control. Since that model does not exist in the real world, where necessary the company needs director performances and requires relationships with creditors and other stakeholders , necessarily a plurality of interests came into play, all more or less attributable to the company or related to the business. Members are no longer the only category to take risks and make decisions, that is to exercise corporate power. Consequently, the transfer of risk even head to other than members, is reflected, by applying the economic theory of the correlation between ownership and control, in a new distribution of power. This new scenario deals with legal strategies which are set up to prevent symptomatic potential corporate conflicts. The purpose is to try to understand if in the UK system and in the Italian law the economic risk distribution model is respected and, eventually, if power is proportionate to the risk that the parties have taken, or there is a mismatch between interests. In this regards, it will be focus on different legal strategies: on the one hand, imperative rules, on the other, contractual remedies that could be seen as, respectively, regulatory and private responses to agency problems. In conclusion, by the agency costs theory and the common English theoretical legal strategies distinction, I wish to offer, respectively, a common language and a general analytic framework with which functionally compare the U.K. and Italy approaches to the distribution of corporate power when companies are in troubles. Finally, some considerations will arise, verifying whether, according to the legal strategies adopted by these jurisdictions, the models of distribution of power are aligned with the economic ones.