L’articolo affronta il tema del funzionamento del consiglio di amministrazione. In particolar modo, si approfondiscono le differenti prerogative degli amministratori esecutivi e non esecutivi da un punto di vista comparato, sulla base dell’analisi tra gli ordinamenti di civil law e quelli di common law.

L’autore giunge alla conclusione che, seppure vi siano alcune differenze, i principi generali e gli schemi di funzionamento non si discostano in maniera sostanziale tra i vari ordinamenti.

 

1. Introduction The practice of attributing different powers between executive and non-executive directors within corporate boards is known across various corporate legal systems [1]. Although there might be certain differences within national frameworks, there are indeed common features across jurisdictions with regard to the exercise of management powers granted to directors. This paper aims to address the grounds on which managing activities revolve around as well as to highlight to what extent national provisions differ from each other [2]. Accordingly, the analysis is based on both civil law countries, such as Italy, France and Spain, as well as on common law nations, such as the United States and the United Kingdom [3], and mainly focuses on the distinction between executives and non-executive board members’ prerogatives to manage the company [4]. In accordance with the aforementioned objectives, this paper delves into CEOs’ management powers, the delegation of such powers and the role of non-executive directors. One point must be stressed at the outset: as it is well known, managing joint-stock companies has become increasingly complex. Management is a task allocated to the companies’ administrative body which, especially in large ones, is made up of executive and non-executive members and acts according to the collegial method [5]. However, collegiality is balanced, also in pursuit of greater efficiency, with the exercise of such powers by one director or by a smaller committee – less entangled than the structure of the entire board – formed by fewer directors (e.g., the executive committee) [6]. The latter has been the object of a practical rather than legal development, so much so that the creation of delegated bodies has its origin in the practice of entrusting a committee (or a director) with the execution of board resolutions [7]. Such a practice has then come to play a central role in corporate governance, to the point of becoming the tool that makes it easy (as well as possible) to manage entities – both public and private [8]. If, on the one hand, collegiality meets the needs of a multi-personal assessment in making choices for the achievement of the corporate purpose [9], on the other hand, it lends itself to the criticism of excessively burdening the decision-making process, with the risk of compromising the relevant corporate activities [10]. To the contrary, the delegation of responsibilities provides a solution to this issue insofar as it is more suited to the need for flexibility and speed in management actions [11]. The salient feature of executive management concerns the position that CEOs have come to hold in relation to the board of directors: from being mere executors of the decisions taken by shareholders to becoming the real corporate decision-making bodies [12]. Finally, corporate governance is based on the key [continua..]