La realtà del sistema dualistico in Italia e l’ignavia del legislatore

Since 2004, Italian companies can opt for a “two-tier” system, whereby their general meetings appoint the members of a supervisory board, which is deemed to hire and fire directors. The political philosophy behind this reform was that companies should be free to select the best-tailor model that fits to their need, as no system proves superior to any other. The “two-tier” system was meant to be used by widely-held companies, yet, as a matter, it is only being adopted by a limited number of closely-held companies: between 65 and 68 out of more than 30 thousand, as of 31.12.2021. In other words, the Italian legal and economic system has rejected this innovation. From a theoretical standpoint, this seems to be a case of rejection of a legal transplant, whereby legal institutions with a foreign origin (in this case, the German company law system) are introduced in another legal environment without significantly impacting private actors’ choices. The reason for such a rejection is unclear, maybe it could be simply due to path dependence. Such a failure, however, also indicates that the very question of whether a governance system is superior to other systems is wrong: each institutional setting, including governance systems, grows organically within a given legal system and cannot be disentangled from its own social and legal environment. This should be a guide for political actors and policymakers for any reform to be developed over the next years.