Thesis title: EXIT FORZATO DEL SOCIO DI SOCIETÀ DI CAPITALI ED EQUA VALORIZZAZIONE DELLA PARTECIPAZIONE SOCIALE TRA LEGGE ED AUTONOMIA STATUTARIA E PARASOCIALE
The principle of “fair valuation” of shareholdings – set out by the Legislator with specific reference to the determination of the value of shareholdings in the case of redeemable shares (pursuant to Section 2437-sexies of the Italian Civil Code) and the exclusion of a shareholder (pursuant to Section 2473-bis of the Italian Civil Code), where the rules on withdrawal are expressly referred to – is upheld, according to current case law and doctrine, including notarial doctrine, as a “corrective measure” whenever cases of so-called “forced exit” occur, that is, when a shareholder of a company is forced to leave same company.
The corporate law system, in the wake of the 2003 reform, is inspired by broad flexibility and the encouragement of shareholder autonomy, albeit in compliance with general principles. On the other hand, the recognition and consequent application of modern general principles, such as that of fair valuation, could represent a limitation on market needs and, therefore, on private autonomy.
Thus, the need to balance economic freedom with the contractual freedom of companies and their shareholders, as well as the interests of creditors, calls for reflection on the limits to contractual and by-laws’ autonomy.