Disgorgement of profits

The author, moving from the consistent gap between remedial solutions available in the Italian legal context (based on the prevalent concept of compensation) and those adopted in common law (in which a considerable element of punishment and/or sanction has become over time indispensable), conducts an examination on the academic and jurisprudential elaborations regarding the new remedies provided by so-called restitution of the illicit profits that –following the framework of the disgorgement damages— gives the victim the possibility to recover the profit accrued by the perpetrator of the illicit act. In other words, a new dimension has been added to the ‘normal’ dynamics of the assessment of damages for actual loss and loss of profit; in relation to the latter, it is similar to the general rule, but is nevertheless absolutely innovative, even eccentric, when compared with past approaches. The calculation now covers not only the earnings lost by reason of the illicit activity of another, but also includes an estimate of the amount that such activity earned for the perpetrator of the illegal conduct.