Sostenibilità «esterna» (ESG), continuità d’impresa e diritto societario

It is well-known that the so-called ESG sustainability starts from the real markets and the enterprise productive system, so that the rules on sustainable transition affect first of all enterprise law, and then corporate law, with often disruptive repercussions. Notwithstanding the connection between ESG sustainability and corporate activity involve the lucra-tive scheme pursuant to art. 2247 of the civil code and the definition of common interest, first of all need to be verified the true relationship between ESG sustainability and financial sustainability. In fact corporate finance studies confirm a relationship among cost of capital, company performance and ESG rating, and empirical investigations show that this relationship is not linear. On the side of the financial markets it is necessary to focus the attention on the “systematic” invest-ment risk management policies by institutional investors and asset managers. However, unlisted SMEs, responsible for more than 60% of emissions, are not included in the portfolios of the main investment funds and are not included in the benchmark indices, with the result that in these companies the pressure represented by policies and proxy voting guidelines is very low.