Andrea Zoppini

Emerging Insolvency and Duties of Administrators: a Few Reflections

  • Abstract

Informations and abstract

Keywords: Emerging Insolvency; Corporate Utility Model; Directors' Duties; Creditors' Interest.

The article focuses on the peculiar status of an incorporated business in the phase of emerging insolvency. Starting point of the analysis are the following questions: does the corporate utility model physiologically pursued by the directors change in the coming out of a crisis? In this stage, is it possible to define and standardize specific managerial duties inspired by principles of preservation and protection of creditors' interest? In positive case, how does the business judgement rule operate in this kind of scenario? The analysis stresses that the administration model adopted by managers must be apt to identify and promptly respond to the first signals of emerging insolvency. In this situation, the scope of fiduciary duties resting on the board cannot be limited to the interest of shareholders: directors must take into account also the expected cost and benefit that their choices may reverberate on the position of creditors.

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