Indice
In Europe, the issue of the parent company’s liability for prejudice caused to its subsidiaries is a fundamental aspect of German and, more recently, Italian law. In other jurisdictions, such as England, this issue is less prominent. In France, on the other hand, the legislator’s and the public’s awareness of this phenomenon is increasingly growing.
US law also generally recognises that if the principle of independence is compromised with the intent to harm the interests of the subsidiary’s creditors, the parent company may be held liable for the debts accrued. However, even in this case, there is no comprehensive regulatory framework.
This relationship between the principle of independence and the distribution of responsibilities within the group also exists in other legal systems, which, moreover, contain a number of interesting novel approaches that are geared towards increased accountability of those in control of the company. For instance, in Russia, without prejudice to the mandatory prerequisite of legal separation between group companies – thus the inability to automatically ascribe the liabilities of subsidiaries to parent companies unless they are proven to be at fault –, joint and several liability is established for transactions entered into by the subsidiary on the basis of binding instructions given by the parent company, irrespective of whether an intent to circumvent is established. In other words, liability beyond the circumscribed cases of harm can also be perceived in the French and German legal systems, although in the latter case the regulations primarily focus on safeguarding the interests of the group as a whole.
Apart from the extremely limited cases of the pathological expression of the legal phenomenon of corporate control – the finding of abuse or dependence – global business transactions are thus carried out on the theoretical and legal assumption that the subsidiaries are independent market operators, despite their being subject to the control (management) of other economic operators.