La distribuzione della responsabilità nei consigli di amministrazione con comitati interni investiti di funzioni istruttorie, propositive e consultive

The paper investigates the consequences of the creation of non executive committees in respect to the allocation of responsibilities between those committees and the board of directors. The purpose is to demonstrate that the allocation of investigative powers, proposal-making and advisory functions to such committees falls within the scope of the case described in art. 2392, paragraph 1, second sentence, second part, of the Italian Civil Code (c.d. “funzioni in concreto attribuite”) and, therefore, it may result in an exception to the rule of joint and several liability of the members of the Board of Directors. This study then questions the behavioral standard requirements for the directors outside the committee: can they rely on the results of these committees’ work, and therefore carry out a summary review (although careful and critical) of the resolutions passed and the proposals made by the committees and their adequacy, or should they instead carry out an analytical review of their work? The conclusions reached will also question the highly discussed issue of the possible use of artificial intelligence techniques in place of or in support of these committees and the fallout of such a choice on the rules governing the allocation of responsibility among directors. This paper will also assess to which extent the liability rules set forth under art. 2392 of the Italian Civil Code, may apply to these committees and more specifically: a) to what extent the committee members may rely on the outcomes of the work performed by the “expert” IA; b) the different positions of the Committees members having specific skills as defined under art. 2392, paragraph 1, of the Italian Civil Code.