Disgorgement, Compensation, Restitution: A comparative approach

The article aims at defining the scope of disgorgement in Italian law, which draws on the Common Law experience, and asks whether the Italian legal system can provide similar recourses. Therefore, the comparative approach is adopted as functional to a more conscious investigation of the Italian law, which apparently, and according to the common opinion among scholars, lacks disgorgement as a general remedy. 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 well, as a generally available private law remedy, or it is just applicable in certain specific cases. I propose 3 hypothetical cases to measure the attitude of the 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 restitution and unjust enrichment. 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 where this remedy is applicable by Italian judges, in addition to the express hypotheses and provisions laid down by the Italian legislation