Giurisdizione e legge applicabile ai prestiti obbligazionari

The article examines the possibility and the restrictions on prorogation of jurisdiction and electio legis about bond loans issued by Italian companies, aimed at istitutional investors operating in Europe. The bond loan, in the part where it regulates relations between bondholders and the Company – and hence, as regards the quorum and the roles assigned to bondholders’ meeting by art. 2415 c.c. - is governed by lex societatis. This is not the case for the common representative of the bondholders: his election, in fact, is not mandatory. However, the powers and functions granted and assigned to it by law, not olny do correspond to the interest of the bondholders but also to those of the Company. Therefore, if a representative of bondholders is appointed, he will be subject to the lex societatis: he will assume the tasks and the powers indicated by italian law, regardless of the governing law chosen by the parties.With regard to the questions concerning the validity of the decisions of the bondholders’ meeting and the powers and the duties conferred upon them the prorogation of jurisdiction and the derogation from italian law are unlawful. The English court seised has to decline jurisdiction because the matter is reserved to the italian exclusive jurisdiction and law. The same applies to the common representative of the bondholders only in the case of insolvency procedures, or when he (or her) is voluntary appointed.