Paolo Montalenti

New General Clauses in Commercial Law between Civil Law and Common Law

  • Abstract

Informations and abstract

Keywords: Civil Law; Common Law; Corporate Law; Contracts; General Clauses; Globalisation; Harmonisation; Regulatory Competition; Hard Law; Merger Acquisition; Soft Law; Leveraged Buyout; Business Judgment Rule.

The article explores the main development trends of corporate, securities and commercial law, pointing out the effects of globalisation and denationalisation in favour of a new form of "lex mercato ria". The author emphasises the dialectic coexistence of harmonisation and regulatory competition in European corporate law. He also examines the most relevant new general clauses in corporate, securities, bank, insurance and contract law. In light of this analysis, the author argues that in all these fields we are experiencing a growing convergence between common law and civil law systems, outlining several examples such as general paradigms - "e.g.", reasonableness, business judgment rule − and new business transactions - "e.g.", leveraged buyouts and merger and acquisitions. He finally analyses the increasing role of the so-called «soft law» - i.e., codes of best practice, corporate governance codes, codes of ethics, authorities' regulation − as supplement to statutory rules and to the so-called «hard law».

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