Disgorgement, Compensation and Restitution: A Comparative Approach

Abstract

AbstractThe article aims at defining the scope of disgorgement in Italian law, which draws on common law experience, and asks whether the Italian legal system can provide similar recourses. English and US law have conceived “disgorgement damages” as a distinctive concept. I verify whether a rule of disgorgement of profits is principled in the Italian legal system as a generally available private law remedy or is just applicable in certain specific cases. I propose 3 hypothetical cases to measure the attitude of different legal systems. The theoretical foundations of disgorgement as a private remedy are located in different branches of private law (compensation, restitution, property law). English and U.S. law place disgorgement in the more general framework of the law of unjust enrichment and restitution. However, disgorgement can be attracted to other branches of law, as I demonstrate with reference to the Italian legal system. By highlighting the functions that disgorgement may perform in each case proposed, I conclude whether disgorgement is applicable by Italian judges, in addition to the express provisions laid down by legislation.