4 years ago
TFA (Trade Facilitation Agreement): il nuovo trattato WTO sul commercio internazionale
Dopo un percorso di quasi quattro anni, il 22 febbraio 2017 è entrato in vigore il Trade Facilitation Agreement noto come TFA (qui per scaricare): “il più grande accordo mai raggiunto nella storia del WTO” secondo le parole di Roberto Azevedo, Direttore-Generale dell’Organizzazione Mondiale del Commercio (World Trade Organisation - WTO). Storia In occasione della Conferenza di Bali del dicembre 2013 del WTO, i ministri hanno concordato il testo del TFA. Il 27 novembre 2014, i Paesi del WTO hanno adottato il relativo protocollo e, contestualmente, è entrato in funzione il TFA Facility, organismo costituito dal WTO per aiutare i Paesi in via di sviluppo ad implementare il TFA. Il 22 febbraio 2017, dopo la ratifica da parte dei due terzi dei Paesi WTO, il TFA è entrato in vigore nei Paesi elencati qui. L’Unione Europea, con effetto per i Paesi UE, ha ratificato il trattato il 5 ottobre 2015. Finalità e contenuti Il TFA ha lo scopo di rendere più veloci e meno costosi la movimentazione, il trasporto e la consegna dei beni nel commercio internazionale. Per fare ciò, il TFA interviene sui passaggi doganali alle frontiere introducendo previsioni volte a: rendere facilmente disponibili in Internet per ogni Paese le procedure (inclusi normativa, tempi e costi) inerenti importazione ed esportazione dei beni;semplificare e standardizzare i controlli doganali;favorire la cooperazione tra dogane e tra imprese e dogane. IL TFA è strutturato in tre sezioni. Sezione I: disposizioni per velocizzare le operazioni doganali (ad esempio semplificazioni procedure esistenti, introduzione di procedure standard internazionali, liberazione dei beni prima della determinazione di costi e tasse doganali);disposizioni per la cooperazione tra dogane;disposizioni per la cooperazione tra dogana e imprese (particolarmente interessante lo strumento del “advance ruling”). Sezione II: disposizioni inerenti le modalità e le tempistiche di implementazione del TFA nei Paesi in via di sviluppo. Sezione III: costituzione di un Comitato permanente presso il WTO e in ogni Paese membro per il monitoraggio dell’implementazione e degli effetti del TFA. Impatti IL WTO ha prodotto un fact sheet da cui emergono i seguenti dati: 14,3% di riduzione media globale dei costi con Paesi africani e in via di sviluppo;47% di riduzione media del tempo per importazione;91% di riduzione media del tempo per esportazione;2,7% di crescita annua globale export;0,5% crescita annua PIL globale. Secondo il WTO, i Paesi in via di sviluppo beneficeranno in media di più dei Paesi sviluppati. Sull’Autore: Raffaele Battaglini (LLM. presso The University of Edinburgh) si occupa di internazionalizzazione e di innovazione delle imprese.
4 years ago
Guide to Italian Innovative SMEs for Foreign Investors
Recently, Italy took one step further into the innovation field and passed a specific law on small and medium enterprises (“SMEs” known as “PMI” in Italy) showing innovation-oriented characteristics. As of 2 January 2017, there are 373 Innovative SMEs in Italy. Innovative SMEs share many of the special rules applied to Innovative start-ups discussed in my previous post so I encourage you to read it first. Innovative SMEs: requirements In order to be recognised as Innovative SMEs, the following requirements must be met: limited liability company (società a responsabilità limitata under Italian law) or joint-stock company (società per azioni under Italian law);headquarter in Italy or in a EU country with a branch in Italy;certified balance sheet;unlisted shares;turnover no higher than € 50 millions;no more than 250 employees;at least two of the following criteria: (i) R&D expenses equal or higher than 3% of the total costs, (ii) at least ⅕ of the personnel is PhD graduated or students, (iii) at least ⅓ of the personnel is properly graduated or (iv) it is the holder/licensee of a patent or software. Innovative SMEs: benefits and exceptions Innovative SMEs have access to several tailored-made rules generally not applicable to other companies. Corporate law The shareholder assembly of the Innovative SMEs may postpone any decisions concerning financial losses affecting the share capital of the company up to two years. The by-laws may regulate shares with different rights and obligations including: shares with no voting rights;shares with voting rights limited to certain matters or subject to certain conditions;shares with non proportional voting rights. Financing and investments Innovative SMEs, as innovative start-ups, may raise financing through the equity crowdfunding platforms which are open to the public. Workforce and other costs The work- for-equity model is applicable to Innovative SMEs. Therefore, personnel and external consultants may be paid with stock option plans and shares. Also, this kind of remuneration is not considered as income. Italy as a Country for Innovation Italy is positioning itself as one of the go-to Country for innovation regardless if the enterprise is a new company (start-up) or an established one (SME). Also, the pro-innovation laws discussed in the present post and in the previous one sum up with several fiscal incentives to foreign direct investments (inbound investments) and to internationalisation (outbound investments). With this post, my "Guide" dedicated to Foreign Investors willing to enter the Italian market ends. I hope it is useful to all of you for your decision-making process about investing in Italy. For any further discussions or questions, you are free to contact me in the comment section below or via email. About the Author: Raffaele Battaglini (LLM. at The University of Edinburgh) is a lawyer expert in international contracts and M&A, innovation and startups.
5 years ago
Italian Innovative Startups: a Guide for Foreign Investors
In 2012, Italy passed a specific law on startups aiming at fostering innovation and young talents. In the most recent years, further innovation-oriented laws have been passed and today Italy is a fundamental player in the european and international ecosystem of innovation. Italian innovative startups are more than 6.000 and are active in the most relevant fields of innovation: internet of things;virtual and augmented reality;biomedical;agtech;cleantech;fintech;insuretechfashion;food;automotive;3D printing. I have been advising several innovative startups in the recent years and only now I see International VCs and Funds actively looking at Italian startups for their investments. So it is the right time to clarify and point out several peculiarities of Italian innovative startups to the benefit of foreign investors which may not immediately understand why Italian startups represent a growing and unique market. Innovative Startups: requirements Only limited liability company (società a responsabilità limitata under Italian law) or joint-stock company (società per azioni under Italian law) meeting the following requirements can be acknowledged as “innovative startups”: new company or established no more than 5 years before;headquarter in Italy or in a EU country with a branch in Italy;development, manufacturing and sale of innovative products or services with high technological value;turnover no higher than € 5 millions;no dividends distribution;it is not the result of a merger, a spin-off or the sale of a business as a going concern;at least one of the following criteria: (i) R&D expenses equal or higher than 15% of the total costs, (ii) at least ⅓ of the personnel is PhD graduated or students, (iii) at least ⅔ of the personnel is properly graduated or (iv) it is the holder/licensee of a patent or software. The label innovative startup brings along two fundamental consequences: access to several tailored-made rules not applicable to other companies;being part of the innovation market where VCs and Funds interest is focused. Innovative Startups: benefits and exceptions Corporate law Innovative startups may be established through an online procedure which does not require the involvement of any Notary Public: this means a faster and cheaper way to start business. It is worth mentioning that such an online incorporation process include a standard by-laws which may be tailored according to the specific needs of the founders. Startups are heavily dependant on R&D, usually achieve positive results after three/five years and failure is more likely than not. Therefore, in the event of financial losses affecting the share capital of the company, the shareholder assembly of the innovative startups may postpone any decision up to two years later;the innovative startups are not subject to bankruptcy but to a peculiar procedure to cope with the insolvency status. Startups need several rounds of financing from external investors which might be professional or private so the by-laws of the company may provide for shares with different rights and obligations including: shares with no voting rights;shares with voting rights limited to certain matters or subject to certain conditions;shares with non proportional voting rights. Financing and investments Innovative startups may access the equity crowdfunding platforms in order to collect the required financing from the public. Also, investments in innovative startups benefit from a fiscal discount which, up to 2016, is 19% of the investment. The draft fiscal law currently under discussion in the Italian parliament establishes a fiscal discount equal to 30% of the investment. Workforce and other costs Personnel and external consultant may be paid with shares and stock option plans according to the work-for-equity model. And this kind of remuneration is not considered as income. Employees may be paid with a retainer fee plus a success fee based on the net result of the company. Innovative startups do not pay the filing fee and the annual fee at the Registry of Companies. Final thoughts The Italian market of, and for, innovative startups is fast growing and Italy is well positioned in Europe as a leading country for innovation. In particular, the EU Commission appointed Turin - the city where I am based in - as the Second European City for Innovation after Amsterdam and before Paris. Next post will be again focused on innovation in Italy: I will be discussing about Innovative SMEs. About the Author: Raffaele Battaglini (LLM. at The University of Edinburgh) is a lawyer expert in international contracts and M&A, innovation and startups.
5 years ago
Italian companies: a Guide to SPA for Foreign Investors and CEOs
After discussing the Italian limited liability company, it is time to talk about the so called società per azioni (joint stock company) or SPA, the form of Italian companies often chosen by multinational companies entering the Italian market. General aspects of SPA SPA share many aspects of the SRL and so: its structure and governance are flexible and adjustable to the shareholders’ needs;it is a limited liability legal entity;it  is regulated by the Italian Civil Code, by the Articles of Association and by the By-Laws;in order to be established, the prospective shareholders need to appear before a Notary Public. The minimum share capital of the SPA is € 50.000,00. SPA: liability of the shareholders Shareholders of a SPA may be individuals or legal entities. The shareholders are not liable for the debts of the SPA: their liability is limited to the contributions paid-in in the SPA (whether in kind or money). If the SPA is owned by a sole shareholder, the limited liability rule does not apply unless the contributions are entirely paid-in and proper disclosure of this status is given to the public. SPA: rights of the shareholders Each shareholder has the right to be informed about the business activities and the assets status of the SPA. Such a right is however limited to circumstances arising out of the balance sheet. Shareholders representing certain percentages (rights of the minorities) may exercise other rights such as lawsuit against directors for damages, invalidity of the shareholders assembly decisions, summoning of the shareholders assembly, revocation of the directors, liability   SPA: exit from the company Shareholders can not withdraw from the SPA as they please. The possible exits are the following: sale of the stocks according to contractual agreements with a third party (sale and purchase agreements, put/call option rights or tag/drag along rights);withdrawal right if the relevant trigger events occur;winding-up of the company: this leads to the extinction of the company. SPA: shares Shareholders’ contributions are represented by stocks (azioni under Italian law). Contributions can be money, credits and goods. The shareholder’s rights are proportional to the number of the owned stocks but the By-Laws may provide otherwise. In principle, stocks can be freely transferred to third parties, but the By-Laws may provide limitations such as pre-emption right, lockdown period, internal approvals. Stocks may be issued in different forms and with different rights attached to them. In case of a capital increase, each shareholder has an option to acquire the new capital in proportion to the owned stocks in order to avoid dilution. The SPA may purchase its own stocks according to specific limitations. SPA: corporate governance SPA comprises three main bodies: shareholders assembly, managing body and internal auditor. Under certain circumstances, there might be an external auditor. With reference to the actual structure of management body and internal auditors, SPA may adopt either one out of three options known as (i) traditional system, (ii) one-tier system and (iii) two-tier system. Shareholders assembly The shareholders assembly main powers are the following: appointment of the managing body;appointment of the internal or external auditors (unless the one-tier system is applied);approval of the balance sheets (unless the two-tier system is applied);dividends distribution;decision about the winding-up of the company;amendments to the By-Laws. The shareholders assembly is summoned by the managing body or the internal auditors with a written communication setting agenda, place, date and time of the meeting. The shareholders assembly may be ordinary or extraordinary depending on the matters at stake. The ordinary shareholders assembly is validly held when at least half of the share capital is present. Decisions are taken by simple majority of the share capital present at the assembly. Decisions of the extraordinary shareholders assembly are taken with the positive vote of more than half of the share capital. The By-Laws may set higher majorities. If the entire share capital and the majority of both managing body and internal statutory auditors are present, a shareholders assembly can be held with no previous written convocation (assemblea totalitaria under Italian law). The traditional system In the traditional system, the shareholder assembly appoints both the managing body and the Statutory Internal Auditors (Collegio Sindacale under Italian law). The managing body may be a Sole Director (Amministratore Unico under Italian law) or a Board of Directors (Consiglio di Amministrazione under Italian law).: The managing body has the duty to manage the company in a profitable and compliant way whereas the Statutory Internal Auditors has the duty of management and accounting audit. When a Board of Directors is appointed, the Directors elect the Chairman if the shareholders assembly did not appoint it. Usually, the Board of Directors appoints one or more Managing Director(s) (Amministratore Delegato under Italian law) with powers limited to specific areas, activities or functions. The Chairman has the duty to summon the Board of Directors with a written communication stating the agenda, place, date and time of the meeting. The Board of Directors meeting is validly held when at least half of its members are present. Decisions are usually taken by simple majority of the present directors. The By-Laws may provide for higher majorities. The managing body is not liable for the company’s debts unless they acted with negligence or willful misconduct. In this case, shareholders and third parties may seek damages. The Internal Statutory Auditors, formed by three or five professionals, is in charge of monitoring (i) the compliance with the law and By-Laws, (ii) the compliance with the adequate management principle and (iii) the suitability of the organisational, administrative and accounting structure as well as its operation. If the SPA drafts a group balance sheet, the accounting audit is assigned to external auditors. Otherwise it may be performed by the Statutory Internal Auditors. One-tier System (sistema monistico under Italian law) In this corporate governance model, the shareholders assembly appoints the Board of Directors which, in turn, appoints a Management Supervisory Board (Comitato per il controllo sulla gestione under Italian law) among its members. The Management Supervisory Board shares the same duties and powers of the Internal Statutory Board. The accounting audit is assigned to external auditors appointed by the shareholders assembly. Two-tier System (sistema dualistico under Italian law) The shareholders assembly appoints the Supervisory Board (Consiglio di Sorveglianza under Italian Law) which is formed by at least three persons. The Supervisory Board has the same role of the Internal Statutory Auditors plus certain powers of the shareholders assembly such as approval of the balance sheet. The Supervisory Board appoints the Management Board (Consiglio di Gestione under Italian law) formed by at least two persons not members of the Supervisory Board. This body has the duties and powers of the Board of Directors. The accounting audit is assigned to external auditors appointed by the shareholders assembly. ****** The present post does not cover the complexity of SPA in its entirety, but it gives a general but, hopefully, effective picture of its main characteristics and numerous facets. Next post will be on innovative start-ups and that is where the fun begins. About the Author: Raffaele Battaglini (LLM. at The University of Edinburgh) is a lawyer expert in international contracts, innovation, M&A deals and start-ups.
5 years ago
Italian Companies for Foreign Investors: the sub-forms of SRL
In my previous post, I described how a società a responsabilità limitata (“SRL”) works under Italian law pointing out incorporation requirements and corporate governance structure. If you did not have the chance to read it, I suggest you to do so because the present short post relies on the information provided last time. Guide to Italian Companies for Foreign Investors and CEOs: the sub-forms of SRL The SRL may be established in sub-forms: the società a responsabilità limitata semplificata (simplified limited liability company “SRLS”) and SRL with low share capital (“Low Capital SRL”). Common elements with SRL SRLS and Low Capital SRL share with SRL the following elements: legal entities statusshareholders are not liable for the debts of the company incorporation before a Notary Publicregulated by the Italian Civil Code and the Articles of Association/By-Lawsgoverned by the shareholder assembly and the managing body The similarities end here. The share capital matters SRLS and Low Capital SRL have limitations to the share capital which is required to meet the following criteria: value between € 1,00 and € 9.999,99;contribution allowed only in money;entirely paid-in at the incorporation of the company. Both such sub-forms are supposed to facilitate youth entrepreneurship. Reality is that the “existence costs” (certified public accountant, taxes, Registrar of Companies) might consume the share capital in a couple of years. Also, banks and multinational companies may not consider reliable doing business with SRLS and Low Capital SRL. The limits of the SRLS SRLS has further limitations on shareholders and corporate governance which render this type of company unfit to foreign investors: the shareholders must be individual persons;the structure and content of the Article of Association/By-Laws are standard and mandatory. The above means that a foreign investor which is a legal entity is forbidden to establish a SRLS and that the By-Laws can not be adjusted to the shareholders needs. Conclusions on SRL and its subforms The standard SRL is widely adopted in Italy, it is flexible and adjustable to the shareholders’ needs. Therefore I believe that it is the best way forward for foreign investors willing to enter into the Italian market. The low capital SRL is suggested only for test purposes in order to keep the expenses at minimum level, but it is unfit for lasting commercial activity. The SRLS is not adequate for foreign investments. ****** Keep following the blog because next post will be about joint-stock company: società per azioni a.k.a. S.p.A., the most advanced form of Italian company. About the Author: Raffaele Battaglini (LLM. at The University of Edinburgh) is a lawyer expert in international contracts, innovation, M&A deals and start-ups.
5 years ago
Italian companies: a Guide to SRL for Foreign Investors and CEOs
Foreign investors and CEOs often feel puzzled by the plethora of different types of companies available under Italian law. The good news is that we can limit the scope to two types of Italian companies: società a responsabilità limitata (limited liability company) whose acronym is “SRL” and società per azioni (joint stock company) whose acronym is “SPA”. The other types of Italian companies are not well-suited for foreing investors. The bad news is that SRL and, in minor degree, SPA may be established in different forms, including innovative start-ups and innovative SMEs. Let’s start from the most widespread among Italian companies: the SRL. This will help to understand the other types of Italian companies which will be examined in the next posts. General aspects of SRL The SRL is the most common company with share capital in Italy, generally established as small or middle company often run by family members or by a few shareholders which act as directors as well. SRL's structure is flexible and adjustable to the shareholders’ needs. The SRL is a limited liability legal entity. As such: it may own any type of assets;the shareholders are not liable for its obligations (with an exception explained below). The SRL is regulated by the Italian Civil Code, by the Articles of Association and the By-Laws. In order to establish a SRL, the prospective shareholders need to appear before a Notary Public. SRL: shareholders Shareholders of a SRL may be individuals or legal entities. The shareholders are not liable for the debts of the SRL: their liability is limited to the contributions paid-in in the SRL (whether in kind or money). The only exception to this rule being the SRL with a sole shareholder: if the sole shareholder fails to perform the contributions and to inform the general public of this status, the limited liability is not applicable. Each shareholder which is not a director of the SRL has the right to have access to any documents, contracts and communications of the SRL. Also, each shareholder may ask the Court to remove a director who is acting against the interests of the SRL and may start a lawsuit for damages suffered by the SRL due to the director’s misconduct. SRL: exit from the company Shareholders are meant to be bound to the company and they can not withdraw from that relationship as they please. The possible exits from a SRL are the following: sale of the share: this requires contractual agreements with a third party (sale and purchase agreements, put/call option rights or tag/drag along rights) keeping in mind possible limitations, such as the pre-emption right, provided for in the by-Laws:withdrawal right: it is subject to specific conditions established by the law or by the By-Laws (e.g. shareholders assembly decisions affecting the scope of the company or the rights of the shareholders, no-term company duration);exclusion from the company: the By-Laws may provide a list of events which trigger the shareholder assembly’s right to exclude a shareholder from the SRL;winding-up of the company: this leads to the extinction of the company. SRL: shares Shareholders’ contributions are represented by shares (quota under Italian law): a percentage of the entire share capital of the company whose value is in proportion to the paid-in contribution. The shareholder’s rights are proportional to the owned share but the By-Laws may provide otherwise. In principle, shares can be freely transferred to third parties, but the By-Laws usually provide limitations such as pre-emption right, lockdown period, internal approvals. In case of a capital increase, each shareholder has an option to acquire the new capital in proportion to the owned share in order to avoid dilution. SRL: corporate governance SRL comprises two main bodies: the shareholders assembly and the management body. Under certain circumstancies, there might be an internal or external auditor. Shareholders assembly The shareholders form the shareholders assembly whose main powers are the following: appointment of the managing body;appointment of the internal or external auditors;approval of the balance sheets;dividends distribution;decision about the winding-up of the company;amendments to the By-Laws. The shareholders assembly is summoned by the managing body with a written communication setting agenda, place, date and time of the meeting. The shareholders assembly is validly held when at least half of the share capital is present. Decisions are taken by simple majority of the share capital present at the assembly but certain matters, such as amendments to the By-Laws, require the positive vote of half share capital and the presence of a Notary Public. The By-Laws may set higher majorities. If the entire share capital is present, the managing body is present or informed and noone challanges the agenda, a shareholder assembly can be held with no previous written convocation (assemblea totalitaria under Italian law). Managing body The managing body of the SRL can be either: a Sole Director (Amministratore Unico under Italian law);a Board of Directors (Consiglio di Amministrazione under Italian law);Directors with joint or sever powers (Amministrazione Congiunta o Disgiunta under Italian law) The managing body has the duty to manage the company in a profitable and compliant way. The By-Laws may set limitations on the Board of Directors powers: for example, decisions on extraordinary matters (such as sale and purchase of businesses as a going concern or participating interests) could be attributed to the shareholders assembly. When a Board of Directors is appointed, the Directors elect a Chairman who acts as legal representative of the company. Usually, the Board of Directors appoints one or more Managing Director(s) (Amministratore Delegato under Italian law) with powers limited to specific areas, activities or functions. The Board of Directors meeting is usually summoned by the Chairman with a written communication stating the agenda, place, date and time of the meeting . The Board of Directors meeting is validly held when at least half of its members are present. Decisions are usually taken by simple majority of the present directors but the By-Laws may provide for higher majorities. The managing body is not directly liable for the company’s debts. However, shareholders and creditors may sue the managing body in order to recover damages if the SRL’s debts are consequence of its negligence or willful misconduct. Auditors SRL are obliged to appoint auditors only if the company: drafts a group balance sheet;controls a company obliged to appoint auditors;overcomes for two consequential years two of the following limits: (i) € 4.400.000,00 as net worth, (ii) € 8.800.000,00 as revenues and (iii) 50 employees. The statutory auditing body of the SRL can be a Sole Statutory Auditor (Sindaco Unico under Italian law), a Board of Statutory Auditors (Collegio Sindacale under Italian law) or an external auditor. About the Author: Raffaele Battaglini (LLM. at The University of Edinburgh) is a lawyer expert in international contracts, innovation, M&A deals and start-ups.
5 years ago
#MyIndustry: Italian lawyers live in the past
Pubblichiamo il post di Raffaele Battaglini del 25 marzo 2016 ospitato sulla piattaforma Pulse (Law Practice Channel) di LinkedIn. Il post originale è disponibile a questo link. #MyIndustry: Italian lawyers live in the past I am a lawyer in Italy and when I come across the activities of our Bar Association (whether local or national) it feels like living in the 19th century. That is, in a nutshell, the state of #MyIndustry: resistant to change, modernisation, innovation, internationalisation, competition. Change: the attitude towards the client, who is more informed than ever before, should move to truly specialised legal support and to a client-oriented experienceModernisation: responsive and SEO-friendly websites, web and social media marketing, client-friendly and customised fee structures, mobility;Innovation: cloud computing, paperless firm, webcall;Internationalisation: partnerships with foreign lawyers and, most of all, proficiency in legal-English;Competition: lawyers are entrepreneurs and they should act accordingly, beating competition through quality of services and affordable fees and stop relying on the protectionism offered by the Bar Association (a monopolistic public body founded during the fascism). Just recently, the Italian Supreme Administrative Court confirmed the € 1 mio fine imposed by the Italian Antitrust Authority to the Italian National Bar Association for measures against the competition. The background story in brief: in open violation of art. 101 TFEU, the Italian National Bar Association sanctioned a handful of lawyers who were advertising themselves on a website promising discounted fees. Italian lawyers, especially the oldest ones who are oppressing the young professionals, need to open their minds. Technology, innovation, the Internet, webmarketing are not enemies and are not unethical. The world has changed and is changing. Everything is affected, included our ancient industry. We can not afford living in the past.