Premises

The privatisation process in development in most of the countries has not solved yet the problem of the juridical order in force of which could actually happen a flux of movements of capitals able to allow the foreign investors to participate to the long-expected process of development of the economies.
In fact, the frequent prohibition to alienate applied by some countries raises the problem of a substantial prohibition for the internationalisation of the economies. As a clear result, the trader who wants to develop economic activities would need specific guaranties for the intended activities, for the unlimited control over the assets acquired through any legal means, for the eventual free transmissibility to those interested (ayant cause or assignees) – through an act inter vives or mortis causa – of the patrimony the economic agent should have full disposability over. Thus, it results the necessity for a substantial and uniform jus civile and for an ordinary or arbitral jurisdiction very rapidly and effectively functioning. In spite of the good will and of the preparation of an almost unlimited number of factional instruments of international range, such a juridical certitude, has never been accomplished.
An example in this respect, at least regarding our country, is the strong contentious between the companies operating here and those existing in the rest of Europe and of the world.
In order to overcome the existing displacement between different legal orders, in Italy is functioning since 1939 an Institute: the one of the fiduciary companies, that, with its characteristics, maybe sometimes not even intuited by the legislator at the moment of their concretisation, represents a real juridical platform for the internationalisation of the companies. In fact, the “static” fiduciary company, according to the Italian law, is first of all carrying mandates without representation; therefore, the given goods and rights do not enter into the patrimony of the company, but they always remain in the domination sphere of the mandatory agent. The fiduciary activity is defined in the limits intended and determined by the mandatory agent, with no possible voluntary execution from the part of the fiduciary company.        
The certitude for all of the above is given by the control power exercised by the M.A.P., which was able to guarantee the functionality of this sector, due to its vigilance activity.

Obviously, on the base of the above mentioned rules, nothing forbids the entrustment to a trust company of a mandate for goods and/or rights administration, that has as object the cession of these to third parties, for a determined period of time, shorter than the period of the mandate received. The cession of these goods and/or rights could embrace the form of: leasing, right of use, right to inhabit, to transport, to exploit, right of passage, right of license etc., for the payment of a fee, a due or a royalty. On the other hand, nothing forbids the same fiduciary company to receive a mandate with an opposite object from its own clients/mandatory agents, the company playing in this case the role of the third party.
In the extent in which the fiduciary company acts as a good-will third party, it can accomplish the received mandates in full juridical and functional autonomy, it can act as a compensation room, it can accomplish the task of the “escrow accounts”, it can rise to the condition of arbitrator in conflicts deriving from the application of the received mandates, it can receive or give guaranties (even if suitable and entirely collateralised), it can operate in the same conditions on the spot or futures markets with merchandises, metals and movable values, it can administrate or create stock exchanges and it can conduct tax assessments.                 
Such a model can exercise the same activity also in third countries or in the European Union countries, in a direct or indirect manner. In a direct manner – by receiving mandates from public and private subjects, national or multinational non resident, having as object the privatisation of goods or rights on their territories. In an indirect manner, the activity could be exercised through the promotion of the creation of local fiduciary subjects, with local capital prevailing, but using the know how and the management of the so called “trust company for internationalisation of local economies”, which – with an eventual Italian participation from SIMEST and ensured  by MIGA – could gather the mandates related to the cession of a good, even if not permanent, to subjects who are not necessary residents.
The mandate this way obtained will be either directly administrated, according to the local fiduciary law (if any), or transferred to Italy or to the EU in the context of the fiduciary company for internationalisation, put under the control of the m.s.e. and adopting as an instrument of its own administration the activity criteria of the Italian fiduciaries.
In case of bankruptcy of the fiduciaries, the entrusted goods or rights do not enter in the bankrupted patrimony and they are to be pre-deduced and returned to their rightful owners.  
Obviously, the above presented solution is valid on short term, but it can not be used over a long period of time, because it seems absurd to find, within the E.U., the contemporaneous existence of different non-concurrent laws (rights), in spite of their common descend from the same Roman matrix[1].
In the Italian Law, as shown, the legislator decided in 1939 to return to the antique Roman roots of the fiduciary relations within the mandate without representation. Finally, the importance of the old conflict between the interpreters of the Romano-German school and those of Anglo-Saxon school decreases, after they have worn out each other for 45 years in debates on the distinctions between the Italian and the Anglo-Saxon juridical regulations. So, it is now possible to advance the creation of a European fiduciary law, based on the direct fiduciary commerce (nominee and figure head) and on the fiduciary instrument (“TRUST”, “Fiduciarie statiche” and “familien stiftung”).
The French legislator made a movement in this respect, by creating a project to introduce the “trust” in its own juridical regulations.
The lack of legislative harmonization results in the use of different regulations to solve problems that should be deal with on uniform basis, with consequences, even fiscal, that can prove to be extremely serious.
Under these circumstances we have to adequate our regulations to such procedures, by innovating the legislation on the “static” fiduciaries on one hand, and by asking for the creation of a common regulation regarding the fiduciary activity, also extended to the trust and to the familien stiftung, that relates also to the so called regulations relative to the succession pacts.
The Italian specific instrument of the fiduciary company is certainly useful for the promotion of the international activities of the companies and it could be a valid contribution, as well as a starting point for the definition of a community model of the fiduciary company, meant to avoid distortions of the market, also created by the different fiscal regulations at the national level.

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