Rapporto di cambio e conflitto di interessi nella delibera di fusione tra tutela reale e tutela obbligatoria

«exchange ratio and conflict of interests in the merger general meeting between property rule and liability rule». One of the most significant problems regarding the merger of joint stock companies (società per azioni) is represented by the conflict of interests that may arise during the companies' resolution to merge. The conflict of interests can arise at the vote concerning the exchange ratio set by the directors in the merger plan and then voted by the shareholders, when the merger occurs between two companies, one shareholder of which is the owner of a shareholding in both companies and also when the merger occurs between a parent company and a subsidiary. In the Italian Civil Code there is a so-called «barring» rule, Art. 2504 quater, that prohibits ruling the merger as invalid once the deed of merger has been published, and grants the shareholder, who considers himself damaged by the merger, the possibility of obtaining compensation for damages arising from the operation concluded under a conflict of interest. With this regulation there is the danger that the shareholder, who considers himself injured by an inappropriate exchange ratio due to the conflict of interests, is denied property rule. This work will attempt to highlight the advantages and disadvantages of the two forms of protection, also from the economic analysis of the law perspective. This research will attempt to retain a fundamental significance for the invalidity protection in the merger, taking advantage of those means made available in this sense by the regulations. To this end, attention will be paid to the precautionary suspension action of both the Board of Directors resolution, with which the merger plan is approved, as well as the companies' resolution approving the merger.