Doing and being a moral leader.
\\n\\n
Released this past November, the list is based on data collected from the Web of Science and highlights some of the world’s most influential scientific minds by naming the researchers whose publications over the previous decade have included a high number of Highly Cited Papers placing them among the top 1% most-cited.
\\n\\nWe wish to congratulate all of the researchers named and especially our authors on this amazing accomplishment! We are happy and proud to share in their success!
\\n"}]',published:!0,mainMedia:null},components:[{type:"htmlEditorComponent",content:'IntechOpen is proud to announce that 179 of our authors have made the Clarivate™ Highly Cited Researchers List for 2020, ranking them among the top 1% most-cited.
\n\nThroughout the years, the list has named a total of 252 IntechOpen authors as Highly Cited. Of those researchers, 69 have been featured on the list multiple times.
\n\n\n\nReleased this past November, the list is based on data collected from the Web of Science and highlights some of the world’s most influential scientific minds by naming the researchers whose publications over the previous decade have included a high number of Highly Cited Papers placing them among the top 1% most-cited.
\n\nWe wish to congratulate all of the researchers named and especially our authors on this amazing accomplishment! We are happy and proud to share in their success!
\n'}],latestNews:[{slug:"intechopen-authors-included-in-the-highly-cited-researchers-list-for-2020-20210121",title:"IntechOpen Authors Included in the Highly Cited Researchers List for 2020"},{slug:"intechopen-maintains-position-as-the-world-s-largest-oa-book-publisher-20201218",title:"IntechOpen Maintains Position as the World’s Largest OA Book Publisher"},{slug:"all-intechopen-books-available-on-perlego-20201215",title:"All IntechOpen Books Available on Perlego"},{slug:"oiv-awards-recognizes-intechopen-s-editors-20201127",title:"OIV Awards Recognizes IntechOpen's Editors"},{slug:"intechopen-joins-crossref-s-initiative-for-open-abstracts-i4oa-to-boost-the-discovery-of-research-20201005",title:"IntechOpen joins Crossref's Initiative for Open Abstracts (I4OA) to Boost the Discovery of Research"},{slug:"intechopen-hits-milestone-5-000-open-access-books-published-20200908",title:"IntechOpen hits milestone: 5,000 Open Access books published!"},{slug:"intechopen-books-hosted-on-the-mathworks-book-program-20200819",title:"IntechOpen Books Hosted on the MathWorks Book Program"},{slug:"intechopen-s-chapter-awarded-the-guenther-von-pannewitz-preis-2020-20200715",title:"IntechOpen's Chapter Awarded the Günther-von-Pannewitz-Preis 2020"}]},book:{item:{type:"book",id:"404",leadTitle:null,fullTitle:"Laser Systems for Applications",title:"Laser Systems for Applications",subtitle:null,reviewType:"peer-reviewed",abstract:"This book addresses topics related to various laser systems intended for the applications in science and various industries. 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Recently, several studies—which are part of the theoretical framework of corporate social responsibility (CSR)—have underlined how entrepreneurial behaviours and values lie at the base of CSR-oriented strategies and actions [1]. The business ethics literature emphasises the values dimension of entrepreneurial and managerial activity. Within this theoretical construct, concepts such as management integrity, authenticity and virtues have been introduced, becoming widespread in the corporate context and giving rise to sustainable business models [2] and models of good governance aimed at constructing a civil economy [3, 4]. Leadership ethics tend to emphasise the benefits of implementing ethical practices within organisations, the importance of a leader’s values and virtues [5, 6, 7] and the positive effects of a leader’s behaviour on employees’ satisfaction, the organisational culture and stakeholders’ relationships [8, 9].
At the same time, the relevance of leadership has been growing in regard to innovative forms of social, environmental and integrated reporting, which place a strong emphasis both on the business model and the quality of leadership that directly or indirectly affects it. However, at present, the relationship between CSR and leadership has not been adequately amplified. Although some innovative topics, such as responsible leadership, have been emerging [10, 11], Du et al. [12] clearly highlight the persistence of certain deficiencies with regard to the interface between leadership and CSR: “despite a growing body of research documenting the business case of CSR, our knowledge of organisational antecedents to CSR remains embryonic” [12], p. 156. Addressing this gap, they investigate the roles of transformational and transactional leadership and the influence on the effectiveness of CSR in generating positive organisational outcomes.
Lack of research calls for further studies aimed to consider leadership components and practices. In particular, among the fields that are still underdeveloped, the relationship between CSR orientation and entrepreneurial/managerial virtues has not been adequately investigated or only partly addressed [6, 13], nor have previous studies expressively analysed entrepreneurial virtues intended as a transcendental perspective and virtues-based leadership and how they are reflected on the business model.
Drawing from these premises, the work aims to focus on entrepreneurial and managerial leadership models, such as charismatic and virtues-based leadership, and their contribution in developing sustainability-oriented strategies, capable of leading companies toward effective models of sustainable development [14]. The research question that orients the study can be summarized as follows: How does leadership affect the business model and its orientation toward sustainability?
Using a methodological approach, which merges the inductive and deductive perspective, this question orients a critical review of ethical-based leadership approaches, followed by the empirical analysis focused on a single case study [15] relative to a large Italian public company—Brunello Cucinelli Spa—driving attention to the models that are more coherent with the actual socio-economic context which require managers and entrepreneurs to govern the internal and external complexity and actively contribute to both the sustainability of the company and the local and global environment.
Leadership has a crucial role in shaping ethical organisational culture through leaders’ moral behaviour, corporate mission, vision and values, ethical criteria for recruiting/selection/promotions, evaluation processes and monitoring, ethical training programs, applying ethical values to decision making, daily routine and in intra-organisation procedures and structures [16]. Leadership behaviour ethics tend to emphasise the leaders’ behaviour and their values [8, 17].
The benefits of implementing ethical practices have been demonstrated by focusing on personal virtues held by leaders [6, 7, 13]. A fundamental pillar for the effectiveness of ethical commitments and the development of internal and external trust lies in a strong ‘steer’ from the top [18, 19]. Ethical leadership requires personal attributes (honesty, ability to listen, allowing others autonomy of choice, openness, willingness to consult and to learn) and manifests itself in a series of executive behaviours (i.e., gaining a real understanding of the culture; building ethics and values into ‘hearts and minds’ by means of ethics training programs; building ethical achievement into performance evaluation, creating channels of communication between the company and stakeholder groups, starting with employees) [20]. There are leaders who freely admit that they are driven by an intrinsic and contagious commitment to values. Leadership is not possible without ethics, because “being a moral leader and doing, acting with moral leadership are one” [21], p. 4 as shown in Table 1.
Being informed by values, emotional and reasoning capability, caring, visionary, proactive and innovative | Doing informed by relationships with all stakeholders, wanting to achieve the best for all and the common good |
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Balanced/in harmony with yourself Reason and emotions Integer (integrity) Vision Passionate Responsible (ethical) Trustworthy | Relational Affective Being there (crisis) Caring Communicating Involving others Responsive |
Moral behaviour and leadership are interrelated: on one hand, moral behaviour is influenced by situational factors such as role modelling, diffusion of responsibility, conformity, etc.; on the other hand, individual differences (i.e., personality and values) act as an antecedent of moral behaviour [22].
Moral leadership is inspired by constitutive moral elements: innovation, intuition and imagination [21]. Moral imagination entails perceiving norms, social roles and relationships entwined in managerial decision-making. Moreover, it involves the ability to envision and evaluate new models that create new possibilities to reframe problems and create new solutions in ways that are economically viable and morally justifiable [23], p.93. Creative value management depends on the attention paid to all values that are at stake. Moral creativity fosters dynamic and innovative CSR strategies and actions and is linked to responsible and sustainable leadership [24, 25]. The organisational culture imbued with moral leadership enjoys several benefits: understanding of the interdependence between stakeholders; learning environment; respect and trust; cooperation; responsibility and accountability. This is not an idealistic approach, being that it is possible to find companies (i.e., the Norwegian company Stormberg A/S, see [26]; The Loccioni Group, see [27]) that apply it.
The ability to “walk the talk of morals” is emphasised when maintaining trustworthiness and model attractiveness [28, 29] and is positively related to charismatic and transformational leadership [7, 30, 31]. Charismatic leaders are capable of turning problems into opportunities and resources thanks to their ability “to see the world” differently [32] and to create and maintain a work environment where people are emotionally and intellectually committed to the organisation’s goals. They build an energetic and positive attitude in others and inspire them to do their very best by creating a common sense of purpose [31]. Personal responsibility, vision, moral virtues, integrity, faith in personal commitment, shared social responsibility and solidarity are typical attributes of charismatic leaders [32], which leverage a virtuous corporate culture in an organisation [33].
The Globe research [34] identified several leadership dimensions, among which are ranked: charisma and ability to motivate members of the organisation by leveraging the transmission of corporate values; ability to create and manage working groups, orienting them toward common goals; level of members involvement in the decision-making process; level of compassion and generosity and the ability to provide human support to the members of the organisation.
When linked to spirituality, moral leadership has been viewed as the means by which religious beliefs impact leaders, the workplace and the society [32]. Ethical standards in business settings, levels of corporate responsibility and the role of religion in business ethics are the interrelated concepts that support the idea of business “as a calling,” which leads to creating an ethical organisational culture, developing CSR and providing servant leadership [35, 36, 37].
Although the world of business is dominated by rationality, efficiency and the pursuit of material goals, spiritual leadership assumes that leaders create a sense of spiritual meaning in followers through values such as honesty, wisdom and humility [38]. Malloch [19] provides several examples of “spiritual enterprises” in which virtues are daily applied in the operative, organisational and strategic management. These companies—also called visionary companies—possess a high level of social and spiritual capital, are characterised by different religious faiths and are diffused both in developed and emerging countries. Managers who hold a spiritual perspective on life are more ethical in their business conduct than those who do not hold a spiritual perspective [39]. In the Western world, the link to religion has often placed morality and wisdom into the private sphere, excluding it from being discussed openly as relevant to management and business altogether [18, 20]. The pursuit of material goals “have dominated economic thinking both in theory and practice” [21], p. 9. However, literature comprising spirituality at work and spiritual leadership theory has become highly influential, especially in the USA. At the same time, this research strand has also attracted significant criticism [39].
Virtue ethics represent a developing approach within business, following with the recovery of the idea of virtue in mainstream philosophical ethics in the second half of the twentieth century [40, 41]. Among the virtue ethics there is a Neo-Aristotelian approach, which is applied to business ethics by several authors [42, 43]. Virtue ethics contribute to an environment for business that fosters the best practices [13] and allows us to understand the authentic “roots” of CSR. Flores and Green [6] used the “Leadership Virtues Questionnaire” to measure four leader virtues (cardinal virtues): prudence, fortitude, temperance and justice, which were positively related to assessments of authentic leadership, ethical leadership and transformational leadership. A stakeholder dialogue and engagement based on virtue ethics is concerned about the development of a virtuous corporate culture that takes a long-term view [44].
As mentioned in the previous sections, Bastons [45] points out that such virtues intervene in the structuring of the decision-making processes and allow the integral development of a company and its stakeholders.
Bertland [41] states that one can better understand the action of a leader when viewed from the perspective of the capabilities approach. This perspective reflects on the role of organisations in developing individual abilities and enriching the setting of the virtues ethics. Virtuous managers will be able to encourage employees and strengthen their talent, enhancing dignity, promoting positive relationships with customers and involving shareholders in social commitment.
Virtuous leadership goes beyond the debate on effectiveness, shifting the discourse to the concern of values, attitudes and behaviours that encourage transcendental development of leaders and followers [46]. Fry [38] defines transcendental leadership as a holistic model that concerns the whole person as it integrates the four essences of human existence: the body (physical essence), the mind (logical/rational thought), the heart (emotions and feelings) and the spirit.
The diffusion and growth of virtues in a company, however, oppose the barriers that Martin [47] identifies, primarily lacking, among the business leaders of today, a vision.
The theoretical construct of responsible leadership derives from the intersection of the moral-based leadership concepts with those of social responsibility and sustainability. It is characterised by a multilevel approach that places the leader, his behaviour, attitudes and choices in the centre of the management of a company, a division or a team [48]. “A responsible leadership theory broadens the notion of leadership from a traditional leader-subordinate relationship to a leader-stakeholder relationships” [12], p. 156. Responsible leadership is in fact described as “an ethical and socio-relational phenomenon that occurs in social interaction processes” [10], p. 99. Accordingly, “building and cultivating ethically sound relations toward different stakeholders is an important responsibility of leaders in an interconnected stakeholder society” [10], p. 101.
Theories on responsible leadership thus emphasise the importance of approaching leadership in the context of stakeholder theory [28, 49]. Responsible leadership requires leader to also engage in involving stakeholders with virtue and integrity to build the best community and workplace [50]. Therefore, it enables the integration of the leaders within the stakeholder community.
Magni and Pennarola [48] point out that the competencies of responsible leadership are centred on communication, involvement of people and the importance attributed to the development of a new corporate culture based on values and moral convictions. The responsible leadership model they developed rests on five pillars: stakeholder consideration and ethical climate; integrity and climate oriented toward justice; role modelling and empowerment; climate geared toward diversity and inclusion and long-term orientation. Through this model, the responsible leader triggers a resilience path that guides the company toward sustainable development. Coherently, key factors of leadership style are the people strategy (the human resources management) and the culture (which enhances the basic values, such as accountability and transparency).The people strategy must be based on the enterprise conceived as a community of people. Therefore, its value is measured based on the commitment in bringing out the skills of its employees and this leads to the virtue of humility [51].
Responsible leadership rests on the idea that the responsible person must have flexible thinking (i.e., strategic and systematic), which includes the dimensions of logic (to sort, select and plan), ethics (foresight, transparency and perseverance) and aesthetic. Therefore, it requires specific cardinal virtues, such as prudence and perseverance.
Many approaches used for implementing CSR and sustainability have been predominantly inward-oriented and incapable of linking firms’ social responsibilities to the core business and the value creation processes [25]. The need for more outward-oriented approaches has been pointed out, claiming the relevance of a sustainable business model with regard to the firms’ value creation processes as a starting point [52, 53]. A sustainable business model is built upon the creation of value for all stakeholders and the natural environment, encompassing a wide range of changes that affect the company culture and values, translated into business practices and strategies, skills and knowledge, the leadership model and the internal and external relationship [54]. The sustainable business models are constructed through the interactions between individuals and groups inside and outside of companies [53, 55, 56]. Inquiring the nature of CSR leadership, Visser [25] observed that many characteristics (traits, styles, skills and knowledge) were associated with CSR leaders. Namely, a set of key characteristics that distinguishes the leadership approach taken by individuals tackling sustainability issues includes: systemic understanding, emotional intelligence, values orientation to shape culture, compelling vision, inclusive style, innovative approach and a long-term perspective.
The theoretical constructs of sustainable leadership is thus closely linked to that of responsible and CSR leadership. It shares the same theoretical setting and differs from the latter only because of a greater focus on the three dimensions of sustainable development (people, planet and profits) and the creation of a social capital necessary to face times of difficulty and crisis [49]. Namely, three main elements characterise sustainable leadership [57]: (1) the need to cultivate a way of being and acting immersed in sustainability values; (2) the rootedness to the life processes and (3) being a dynamic, inclusive and collaborative process. Therefore, the leader’s role does not rest in guiding others, but in guiding with the others as a result of sharing the values and the vision of sustainability inside and outside of the company.
A possible “missing link” between theory and practice of sustainability in the daily life of companies can thus be attributed to the lack of attention toward a key factor for concretely implementing a sustainable business model, which is an authentic leadership model consistent to the sustainability orientation and based on a moral and ethical construct. Sustainable leaders should be innovative and proactive in driving the change inside and outside the company toward sustainability. They should be capable to take the initiative without waiting for political decisions or forced by norms and laws. They should not be oriented to a short-term financial and competitive success and to an opportunistic use of CSR, merely aimed to increase the company (and their own) legitimacy [58]. In other words, they should be authentic.
The word authentic derives from authento, “to have full power” [59]. Aristotle’s view of ethics focused on one’s pursuit of the “higher good” achieved through self-realisation when the activity of the soul is aligned with virtue to produce a complete life. Such self-realisation is tied to one’s well-being or eudaemonia, a form of happiness that, in contrast to hedonism, arises from successfully performing activities that reflect one’s true calling. Departing from ancient Greek philosophy, a variety of leader authenticity definitions have advanced over the years and several theoretical, empirical and practitioner publications have been produced [60]. Authenticity encompasses four key components: (1) awareness (i.e., knowledge and trust in one’s thoughts, feelings, motives and values); (2) unbiased processing (i.e., objectivity in regard to the acceptance of one’s positive and negative attributes); (3) behaviour (i.e., acting based on one’s true preferences, values and needs rather than merely acting to please others, secure rewards or avoid punishments) and (4) relational orientation (i.e., achieving and valuing truthfulness and openness in one’s close relationships [61]. This multi-component conceptualisation of authenticity has provided the theoretical foundation for several theories of authentic leadership [62].
Authenticity as a driver of entrepreneurial and managerial behaviour relates to the expression of integrity [9]. Entrepreneurial and managerial authenticity influences the nature and extent of CSR approaches and explains the tendency toward a genuine and intrinsically based orientation to CSR and sustainability [25]. A lack of integrity in the organisation’s functioning, as well as in organisational practices, constitutes “companies’ vices,” which are often diffused in large public companies [20]. In the framework of leadership studies, authenticity emerges as a key factor. Fundamental pillars of authentic leadership include: the goal, the values, the heart, the relationships and self-discipline [63]. An authentic leader possesses a positive psychological capital (confidence, optimism, hope and resilience) and an elevated level of morality. He/she develops authentic relationships with followers, increments confidence and builds a work environment and a pleasant organisational climate, oriented toward sustainability. The mission-driven companies, which are guided by an authentic leader, are able to generate a much higher value (in economic, social and environmental terms) than those who exclusively research profit results [63], such as the following case study demonstrates.
The empirical research design has been developed using a qualitative approach [64] based on a single case study method [15, 65]. As a research strategy, the distinguishing characteristic of the case study is that it attempts to examine: (a) a contemporary phenomenon in its real-life context, especially when (b) the boundaries between phenomenon and context are not clearly evident [66]. The ability of a case study researcher to portray a comprehensive analysis of phenomenon becomes important to capture the original vantage points from both sides [66], p. 260.
The case study is relative to an Italian company, namely Brunello Cucinelli, belonging to the fashion industry and based in the Umbria region. The company has been selected for its traits of excellence, both relative to the business model and the leadership model, which makes it an interesting laboratory on a scientific and managerial level. Brunello Cucinelli (the founding entrepreneur) has been collaborating for years with different universities and national and international research centres.
Data have been collected from two main sources. First, a document analysis of materials downloaded from the Internet site in a period of 3 months (Dec 2016–Feb 2017) have been carried out. The documents include: annual and infra-annual reports, press releases and information on the company’s principles posted on the website [67].
Secondly, a document analysis of books and articles relating to the company and their entrepreneurs/managers published in newspapers in the last 5 years (2012–2016) (national and international newspapers downloaded by the company corporate website) has been carried out [68].
Information have been selected in order to cover the following topics: mission and basic values of the companies; business models; leadership model; strategies and stakeholder initiatives (stakeholder engagement). A manual coding of the texts and statements/speeches of managers/entrepreneurs has been performed.
Brunello Cucinelli Spa is an Italian couture house of approximately 1400 employees listed on the Italian electronic stock exchange (MTA). The company was founded in 1978 by Brunello Cucinelli, stylist and entrepreneur, in the medieval hamlet of Solomeo, a small hilltop village located on the outskirts of Perugia (Umbria, Italy). Currently, it represents one of the most exclusive brands and testimonials of Italian lifestyle worldwide in the international luxury prêt-à-porter sector, specialised in cashmere. Brunello Cucinelli Spa’s success, whose financial results are briefly shown in Table 2, is rooted in the history and legacy of great craftsmanship as well as in modern design: a quality strategy founded on a combination of high quality material, innovation, creativity and artisan skill.
Net revenues | €456.0 million, +10.1% at current exchange rates compared to December 31, 2015 |
Growth in all distribution channels | Retail mono-brand +17.1%, wholesale mono-brand +2.4% and wholesale multi-brand +4.2% |
Net debt | Approximately €51 million on December 31, 2016, a decrease on the figure of €56.4 million on December 31, 2015 |
Investment | Approximately €30 million in 2016 |
2015 EBITDA | € 69.1 million (up by 11.0% compared to 2014) |
Brunello Cucinelli Spa’s preliminary results (2016).
Source: Corporate website:
Brunello Cucinelli, Chairman and CEO of the company, commented on this data: “Another splendid year for our industry has just ended with double digit revenue growth and a very agreeable image of our brand at a universal level. To all our esteemed employees, co-workers, clients and shareholders, who help us feel like custodians of creation, we would like to express our most heartfelt thank you, thank you, thank you.”
Brunello Cucinelli brand is an expression of a sophisticated concept of a contemporary lifestyle. The brand is firmly rooted in quality excellence, Italian craftsmanship and creativity, which are the foundations on which the company’s growth can be built in the long run. The positive results that have been achieved confirm the sustainability of the business model and mark the company’s long-term growth project, which together with the development of human resources falls in with the concept of “humanistic capitalism,” an integral part of the Group’s DNA.
The humanistic enterprise model trigged by the so-called Prince of Solomeo [68] derives from the vision and charisma of the founder, Brunello Cucinelli, born in 1953 in a peasant family in Castel Rigone, a fifteenth century little hamlet near Perugia. After obtaining a diploma as surveyor, he enrolled in the faculty of Engineering. However, he dropped out in 1978 to set up a small company and implement his basic intuition. The business idea was to dye cashmere, which at that point had mainly come in natural or more basic colours. In 1982, after getting married, Brunello moved to Solomeo, a small, ancient town in Umbria, where, in 1985, he purchased the fourteenth century tumbledown castle that became the corporate headquarters and venue, making his dreams come true.
Indeed, Solomeo became a great workshop for him to build his success as an entrepreneur capable of putting a contemporary form of “neo-humanistic capitalism” into practice, which is a different way of doing business in the twenty-first century, where profit can be sought without damaging mankind. This concept of contemporary capitalism has been defined by the press as an innovative example of “humanistic capitalism.” This vision was rooted in Brunello as a boy, when he witnessed his father working in an unwelcoming environment. He became a close observer of the world, thus developing his dream to promote a concept of work that ensured respect for the moral and economic dignity of human beings. This is the key element to understanding Brunello’s personality and the success of his business, which is intended not only as a wealth-generating entity but also as a driver to develop capitalism that enhances human beings. Brunello’s philosophy can be summarised in his words: “During my lifetime, I have always nurtured a dream: useful work to achieve an important goal. I have always felt that business profit alone was not enough to fulfil my dream and a higher purpose was to be found.” Over the years, Brunello has been acknowledged by national and international honours, such as the “Knight of Industry” nomination assigned by the President of the Italian Republic and an honorary degree in Philosophy and Ethics of Human Relations from the University of Perugia.
In 2012, the company was listed in the Stock Exchange market, not only for financial reason but also because the wider participation in his business activity represented an opportunity to spread Brunello’s ideals of capitalism, conceived as a new Renaissance in its infancy, a golden century resting on the great values of humanity. Sustainability of growth and healthy profitability are distinctive features of the company.
Accordingly, many projects were triggered to make these ideals come true. In 2013, the Solomeo School of Arts and Crafts was established and is located in the Forum of Art, built exclusively by Umbrian master craftsmen. It also includes the Neo-humanistic Aurelian Library, the Gymnasium, the Amphitheatre and the Theatre, because Brunello’s vision requires that the memory of an important humanistic factor such as craftsmanship is preserved and passed on to future generations. Moreover, the Project for Beauty presented in 2014 and supported by the Brunello and Federica Cucinelli Foundation entails the creation of three huge parks in the valley at the foot of the Solomeo hill (the Agricultural Park, the Secular Youth Club Park and the Industry Park), recovering part of the property occupied by old abandoned factories and using it to grow trees, orchards and lawns. This initiative symbolises the crucial value of earth, “from which all things are” and highlights the duty to restore the dignity of the land and to act as a guardian of creation. Excellent quality, Italian craftsmanship, creativity and exclusive distribution are the pillars and foundations of corporate identity and philosophy, which nurture the business model (Figure 1).
Brunello Cucinelli Spa’s business model. Source: Brunello Cucinelli Annual report (2016).
The foundations of the business model are (1) search for top-notch quality, excellence in craftsmanship and manual work and skills; (2) exclusive products, which are expressions of authentic Made in Italy and (3) the preservation of values that make up the company’s DNA: dignity of work, profit and a special relationship with the surrounding territory, in a “gracious” and constant long-term development plan (Tables 3 and 4). Brunello Cucinelli has set up an innovative business dimension, that is, a reality in which the human being lies at the core of the company and work is seen as an expression of human value, where profit becomes a means to achieve the higher end of the ultimate good to improve the workers’ lives. Besides the fundamental values and general principles of compliance with the law, honesty, transparency, fairness and good faith (as per the company’s Code of Ethics), strategic priority is given to sustainable development objectives, including the well-being of all those working for and cooperating with the company as well as the company’s responsibility vis-a-vis humanity. This orientation represents a value proposition for customers who are always receptive to ethics and sustainability.
The decline of consumerism in favour of a fair use of things | “Consuming means impoverishing and depleting, whereas if we use our resources reasonably, they have the time to grow back. The well-being of society coincides with a fair use of things, therefore a gracious, sustainable and healthy growth turns out to be perhaps more human. We need agracious growth” (La Repubblica, September 20, 2014). |
Humanist artisans of the web | “Thanks to new technological horizons our tradition of seeking knowledge, human relations and the circulation of ideas can reverberate with new exciting energy, a deeply ethical and social one. The quality of knowledge and therefore of life improves only if critical thinking progresses along with innovation. The time has come to humanise the web” (QN, June 22, 2016). |
Pleasant peripheries | “Peripheries are often seen in a negative fashion. However, city outskirts, such as Solomeo, are beautiful places when their humanity and the dignity of the people living there can express themselves fully. We must be able to envisage and imagine a new concept of periphery, a place that respects the dignity of human beings and things alike.” “In ancient Greek the word ‘periphery’ signified circumference, a circle, namely the most perfect of all shapes. Peripheries must be pleasant places, where people acknowledge their identity and find meaning in their existence. “The Project of beauty carried out in Solomeo means giving back to nature and to the wonderful landscape of the Umbrian hills covering over 80 hectares of land” (La Repubblica, November 27, 2014). |
A fair working life | “A fair working life rests on the same ideal principles as a fair use of things. Work, regardless of its nature and kind, should never encroach upon people’s life, their rest, the time they need to find a balance between their soul and their body. In our company, it is forbidden to work past the agreed working time. Employers should never steal the soul of their workers by depriving them of the time they need to lead a healthy life. In this regard, it is worth recalling a suitable statement by Saint Benedict who warned that every day we should ‘look after our mind through study and our soul through prayer and work’ (La Repubblica: Capitalism must keep step with mankind,” June 21, 2016). |
Some pillars of Brunello’s philosophy and sustainable business model.
Source: Our elaboration from the Brunello Cucinelli website.
Principle/pillar | Practice |
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Italian craftsmanship and manual skills “passion for beauty and the recognition of talented people who can make items that are sought after across the globe.” “Italian craftsmanship and manual skills epitomise the beauty of our products, our culture, our identity. Being acknowledged as “artisanal industrialists” is a value that is maintained over time” | The design of collections and development of samples are carried out in-house by a team of over 100 people striving to combine innovation, creativity and manual skills and are entrusted to over 300 independent highly specialised artisan workshops mostly based in Umbria |
Centrality of communication (transparency): the corporate philosophy is strongly rooted in the humanistic culture and in the teachings of ancient figures (such as Socrates, Aristotle, Seneca, Saint Benedict, Saint Francis and Saint Augustine) targeting social and existential “well-being” that goes hand-in-hand with the growth of the company’s true value | The corporate communication strategy hinges on: - communicating the values embodied in the company’s philosophy - communicating the taste and lifestyle of the Brunello Cucinelli universe and his way of interpreting humanity |
Valuing people: to take interest in each employee as a person, not just as a resource | Brunello Cucinelli calls the employees “thinking souls,” thus revealing the people-centred approach, the concept of work as a full expression of the human being and the philosophical inquiry and care of workers “Our comprehensive quality is the result of the inner quality of each and every one of us” (B. Cucinelli) |
Developing people: to treat everyone (employees and collaborators) with great respect, favouring opportunities for personal and professional growth and promoting change inside and outside the organisation | Dignity and guardianship: Brunello Cucinelli is a humanistic company, based on ethics and production. “I found it increasingly difficult not to adopt a concept of work and human action based on positivity and belief in the future” (B. Cucinelli) |
Building community Brunello Cucinelli built a sense of community within the organisation by always nurturing the growth of personal and community culture and socio-economic environment | The entrepreneur is a genuine expression of the Umbrian region. He carefully safeguards the sensitivity and values of this land “We must listen to the genius loci, the spirit of place: for centuries, Solomeo has produced olive oil and wine, and now it produces cashmere” (B. Cucinelli) The humanistic vision, the search for the beauty and the passion for original handcrafted products are generated by a spiritual tension, that has its roots in the medieval and Renaissance history and culture, enlightened by the religious experiences of Saint Francis of Assisi and Saint Benedict of Norcia, by Giotto’s and Perugino |
Displaying authenticity The leader displays authenticity in personal and professional choices | “Beauty generates value. We feel responsible for the beauty in the world” (B. Cucinelli). The School of Arts and Crafts in Solomeo aims to train human beings and strives to dignify work focusing on “Art, culture and spirituality, which meet in absolute freedom to enhance human awareness” (B. Cucinelli). Culture and beauty emphasise human creativity; they are a treasure to be safeguarded which enable Brunello Cucinelli to blend tradition and modernity and work in harmony with the local and global dimensions |
Sharing leadership The entrepreneur puts trust in employees and leads by example inspiring vision of the organisation’s future | In their pursuit of the “humanistic enterprise,” people work to achieve a shared objective, a system of non-material values that represent the living core of the company “We believe that success is something to be shared” (B. Cucinelli) |
Business and leadership model features in theory and practice.
Source: Our elaboration.
Gracious growth and healthy profitability, deriving from the attention that Brunello Cucinelli shows unconditionally and consistently to the surrounding community and all stakeholders, are the key to long-term development.
In the annual report section devoted to Shareholders and Values, we can read his statement: “I would like our products to speak of our land and place of origin, while we strive to work with dignity, tolerance and respect”. Being shareholders of Brunello Cucinelli means: supporting and sharing a value system and philosophy that places the human being at the core of every business project; sharing a very long-term project of sustainable and ethical profit growth, according to a business model that has enabled the brand to become a world-class member of the “absolute luxury” segment thanks to craftsmanship, top-notch quality and exclusive distribution and investing in a sound company whose balance sheets report positive results year in and year out, with sustainable growth that enables the brand to safeguard its exclusivity and positioning in the absolute luxury category, seizing long-term development opportunities.
Drawing from the case analysis, several traits characterise the ethical-based and charismatic leadership model emerged [31, 32, 33, 36, 37]. Since its foundation, the company pursues a sustainable-oriented business model that is positively affected by a leadership style tied to a moral-based and servant leadership and is founded on integrity [27]. The latter is coherent and consistent to the business strategy, its mission, goals and organisational culture.
A leadership model imbued with a moral foundation rests on values and virtues. Accordingly, at the centre, the entrepreneur/manager puts people, their lives and well-being. Valuing people, respecting and protecting the environment, preserving the social and cultural framework and sharing ideas and objectives with stakeholders are the pillars of the company’s success [25].
Even if the results of the empirical analysis cannot be generalised, the explorative study contributes to grasp some important traits of the leadership model, which are positively connected to a multidimensional and long-term growth, oriented to pursue economic, social and environmental objectives.
First, responsible leadership may be widespread within businesses, affecting the different levels: individual (favouring the passage from “me to us” through collaboration and shared responsibility); team (through the development of mutual relations of trust and open communication) and organisation (structuring a coherent vision and a mission). It rests on the idea that the responsible person must have flexible thinking (i.e., strategic and systematic), which includes the dimensions of logic (to sort, select and plan), ethics (foresight, transparency and perseverance) and aesthetic. Therefore, it requires specific cardinal virtues, such as prudence and perseverance [44].
Second, entrepreneurial and managerial leadership styles and models play a crucial role in shaping organisational culture, especially through leaders’ moral behaviour and values and the ethical criteria applied to decision-making, which affect daily routine and intra-organisation procedures and structures [16]. Namely, a set of key characteristics that distinguishes the leadership approach taken by individuals tackling sustainability issues includes [25]: systemic understanding (a responsible leadership results from the interaction between an organisation’s social, environmental and economic context and the characteristics of individual leaders); emotional intelligence (the ability and the real inspiration to unlock human potential and motivate people); values orientation to shape culture (a values-based approach nurtured by morality and spirituality is critical); compelling vision (the ability to effectively communicate a compelling narrative on how their organisations can contribute to creating a better world); inclusive style (the leader and the followers working together to get to certain outcomes); innovative approach (a willingness to innovate and be radical, stimulating lateral thinking and cross-functional, collaborative problem solving since complex problems require creative solutions) and a long-term perspective (long-term thinking on impacts in terms of sustainability).
In light of these preliminary results, additional research should deepen the link and coherence between sustainable business models and leadership models as well as the benefits and outcomes of the ethical-based and charismatic leadership model. Moreover, further empirical studies could provide rich descriptions of this observation in a variety of organisational sectors [53, 56]. Despite its limitations, due to the fact that results cannot be generalised, being based on a single case study, the work has both scientific and managerial implications. On the one hand, it contributes to understand the relationship between leadership and the business model, which is still under-investigated. On the other hand, it exemplifies resilience derived from a sustainable business model, activated through relationships among internal and external stakeholders and supported by a coherent leadership approach. As such, the research project helps to improve the education of the sustainability-oriented process and sustainable leadership in the real business context, thus opening new trajectories for a fruitful convergence of theory and practice.
Recent years have seen increasing reliance on digital economies to support ways of working and yet the prospect of business failures in this context have not yet received detailed attention as potential cybersecurity risks. An example of a technology which is of growing significance in this environment is cloud computing, which has revolutionised professional activities, through facilitating home working as well as significantly cutting costs for businesses, financial institutions, healthcare providers and government departments. It is easy to see why cloud services have grown in popularity, as cloud computing offers significant benefits. For example, major recent usage has widely arisen in the context of home working in the wake of the Covid-19 pandemic. One way in which the cloud has been important in this context is through virtualized desktops, which can seamlessly enable an employee to work on a project both at home and in the office. Even before the pandemic, cloud computing services were increasing in importance, given their adaptability and scalability as well as other benefits, for example that software and artificial intelligence functions can be accessed more cheaply. The scalable nature of cloud services can also for example enable big data analytics to be carried out much more cheaply than was previously possible. Cloud storage also offers greater security in some ways: a lost datastick or stolen laptop no longer entails an expensive loss of data, since the content is now securely stored in the cloud servers [1]. As a result of these and other attractions the public cloud sector has been forecast to grow by 6.3% worldwide in 2020 [2].
\nIn spite of its considerable benefits and wide usage, the cloud computing sector is not always properly understood by those using it. Indeed, users may often not always realise that the service that they are using is provided via the cloud. Rather than consisting of anything as ethereal as storage in a cloud in the sky, as some users might envisage, cloud computing simply means that services are provided and accessed on offsite machines, rather than on a local machine. These services are operated by companies, which can get into difficulties and become insolvent and this cybersecurity risk that has barely received attention before now [3, 4].
\nPossible reasons why a service provider can get into difficulties include a downturn in economic conditions, mismanagement, reputational damage, hacking, terrorism and natural disasters leading to financial difficulties and insolvency. Further problems may arise if there is disruption to the services or property that the cloud service provider relies upon. A service provider which is insolvent will not be able to pay its creditors in full and bankruptcy laws provide rules to address this in a fair way, as discussed in Part 5 below. Bankruptcy proceedings are typically designed to enable creditors to be repaid efficiently and at a limited cost, yet cloud computing insolvencies present challenging difficulties of complexity from a customer perspective, since customers will want to recover their content and source alternative providers before the service is shut down. Keeping the business running while this is done will be potentially costly in a circumstance where there will be limited funds. These bankruptcies therefore present a tension between the interests of creditors, who already face the loss of most, or all, of what they are owed, and the interests of cloud computing customers who will expect that the cloud service provider continues to operate temporarily while their content is recovered.
\nThis Chapter will first provide some background regarding cloud service provision. This will be presented in part 2, followed by a more detailed examination of the cybersecurity risk of insolvencies in this sector in part 3. Part 4 will discuss risk mitigation and then the complexities of insolvencies in this area will be discussed in Part 5. Part 6 will look at whether the law may be developed to offer more help to customers of insolvent cloud computing providers, before some conclusions are offered.
\nThe main forms of cloud service are termed IAAS, SAAS and PAAS. “IAAS” is infrastructure as a service, “SAAS” is software as a service and “PAAS” is platform as a service. IAAS primarily enables hardware provision for processing or storage, such as servers and real or virtual machines, together with virtualisation software to allocate hardware to particular customers. Examples are Rackspace and IBM Bluemix. Examples of SAAS arrangement are customers who access software such as Microsoft 365 and movies from Netflix via the cloud, rather than software on their machine. PaaS is often used for application development and deployment and an example provider is Heroku. See also Table 1, below.
\nType of Service | \nExample usage | \nExample providers | \nWhat is provided | \nProblem in the event of provider insolvency | \nPossible safeguards | \n
---|---|---|---|---|---|
Platform as a service, “PAAS” | \nProvision of platform e.g. for the development of software applications. | \nHeroku, Salesforce’s | \nOperating system, middleware, virtualisation and hardware | \nLoss of platform | \nContingency planning, identification of potential alternative platform supplier | \n
Software as a service, “SAAS” | \nProvision of software enabling e.g. project management, collaboration, management tools and business processes | \nMicrosoft 365, Apple iCloud, Gmail, Basecamp, Trello, Netflix, Spotify, Dropbox | \nUnderlying infrastructure, middleware, software application and application data | \nLoss of software and uploaded content. Potential loss of readability of data | \nSoftware escrow, copyright splitting, step-in rights. Contingency planning e.g. indentification of potential alternative providers (if any). | \n
Infrastructure as a service, “IAAS” | \nInstant access to infrasctructure, useful for unpredictable or increased demand e.g. for big data analytics, complex website hosting | \nRackspace, IBM Bluemix, Microsoft Azure, Amazon Web Services | \nHardware provision for processing or storage, such as servers and real or virtual machines, together with virtualisation software to allocate hardware to particular customers | \nLoss of infrastructure | \nContingency planning e.g. identification of alternative provider. | \n
Overview of cloud services and insolvency risks and safeguards.
Cloud services can be offered via a public cloud, a private cloud or a hybrid. Public clouds are operated by third parties for a variety of users on a pay as you go basis and hosted on the premises of the third party and, due to their nature, may be unsuitable for business critical or security sensitive information. Private clouds are operated by a single organisation for its exclusive use and are therefore low risk, although potentially used by many employees, provided that the private cloud is hosted by the organisation on its own premises. Risks are presented where a private cloud is operated by a third party and off-premises. Hybrid clouds allow data and applications to be used across public and private clouds and commonly they will deploy the private cloud for business critical or commercially sensitive information and other data will use the public cloud. Provider failures in the cases of hybrid and public clouds and third-party provided private clouds will then give rise to problems for large numbers of users.
\nIt is often unappreciated by users that cloud service providers are operated by companies and they carry risks of failure, for example due to market conditions or cyber-attacks. Insolvency risks have however been identified in technology literature [5], by Lloyd’s of London [6] and by research organisations [7]. Lloyd’s, an insurance provider, identified the potential risk most plainly: ‘reliance on a relatively small number of companies has resulted in systemic risk for businesses using their services’. Most obviously the failure of one of the leading service providers would present problems but cloud services can be provided by complex arrangements of companies and risk are presented by smaller companies also. The European Telecommunications Standards Institute considered that the bankruptcy of a cloud service provider would be ‘hard to deal with’.
\nYet it is clear that there is potential for a cloud service provider to become bankrupt [8]. For example, Fusion Connect Inc. filed for Chapter 11 bankruptcy protection in the US in 2020. There have been other previous examples. Nirvanix filed for US Chapter 11 bankruptcy protection in 2013 and gave customers two weeks’ notice before closing down [9]. Other cloud providers which have gone out of business are Megaupload and MegaCloud, and the UK example of 2e2, a data centre, which failed, leaving customers with expensive costs for the recovery of their content (around £1 million or $1.3 million) [10].
\nIn the event of bankruptcy of a cloud service provider, a customer will be faced with the need to recover their content and to source an alternative provider of infrastructure, software or platform.
\nThere may be considerable practical difficulties both in relation to recovery of content and the sourcing of an alternative provider. The recovery of large volumes of data is a slow process. It may be that an alternative service is unavailable. This may render content unreadable. It may be that the business is closed before customers can recover their content and make alternative arrangements. The insolvency office holder may require funding from customers to keep the business running while content is recovered. However, in an extreme case a business may simply shut down and content will be lost. Problems for customers can stem from difficulties not just of the cloud service provider itself - the service provider may have outsourced services to a third party which shuts down. Business arrangements such as these will add levels of complexity to the recovery of content from the cloud.
\nThe potential difficulties for customers in recovering content from a cloud service provider insolvency will be considered in more detail in part 5 below.
\nThe main steps that customers can take relate to diligence in selecting a cloud service provider and, where possible, the inclusion of terms in the agreement with the service provider to protect the customer’s content in the event of insolvency. However, customers would also be wise to have an alternative plan in the event of a loss of content or access to software. Regular backups with a third-party provider would be one option, although not perfect, since any backup will be a snapshot of the content at the time of the most recent backup.
\nGiven the potential risk, what can customers do to protect themselves from the risk of cloud service provider insolvencies? Users would be wise to consider the potential long-term viability of cloud service providers before entering into a contract with them [11], in particular if the provider will be storing or processing data, or supplying access to important software. Large market players in the cloud service industry may offer greater prospects of longevity of supply but fewer prospects of a bespoke service. Not all customers will realistically be able to bargain with cloud service providers, as discussed below. However, some sectors such as banking [12, 13] may place pre-conditions on eligibility for cloud service providers and large customers for example [14] may also have specifications for eligible suppliers.
\nIt would be prudent as well to identify potential alternative service providers in the event that the worst happens and selected provider can no longer offer the contracted service, denying access to data or to critical software.
\nCloud computing customers may try to address the risks of insolvency contractually [15, 16] however there are limitations to the effectiveness of this. For many customers, service will be on standard terms that will contain no provision for insolvency [17]. Large companies may have more negotiating power. In the event that a customer can bargain to obtain contractual protection, it will be important to clarify that there is a distinction between the ownership of the cloud infrastructure and the ownership of content in the cloud, such as data, so that the data does not form part of the bankruptcy estate [18], as discussed in the next section. Other options would be to include:
Step-in rights: entitlements that are common in outsourcing contracts and enable control to be taken of the service provider. In the cloud computing context difficulties in exercising such powers would arise where there is shared infrastructure, staff and technology.
Software escrow is another approach, which can be of benefit to customers who access software via the cloud. Under such an arrangement a third party would hold the software source code under a software escrow arrangement and release it upon the occurrence of a triggering event, which could include the insolvency of the service provider [19].
A further example is copyright splitting [20], but this might be practicably difficult to implement in the event that there are numerous users of the software.
These approaches can potentially provide workable approaches in the event of a cloud service provider insolvency.
\nIn the event that a cloud service provider gets into financial difficulties there are normally two main formal insolvency possibilities that can be used to address the company’s inability to pay its debts. Most simply, the cloud service provider may be liquidated or it may be reorganised, both of which procedures will be explained below. It must be added, however that the procedures that apply in the event of insolvency are not international and they will vary depending on the country in which the proceedings are opened. This presents a complication in the case of cloud service providers, which may have supranational affairs. The proper venue in which to open insolvency proceedings may be unclear, although both the US and UK are jurisdictions with well-developed insolvency frameworks, and which both take fairly expansive approaches to jurisdiction to open insolvency proceedings [21, 22] and it may be that these will be favoured as venues in cases where there is some connection with the cloud service provider.
\nWe can illustrate the main likely insolvency procedures and issues that may arise in this context by reference to those which operate in the US and UK. As noted, both of these countries have well-developed insolvency laws. However, insolvency laws in other countries may be more limited and so may the infrastructure to deal with proceedings in respect of insolvent cloud service providers, since courts may be over-burdened and lacking in specialist expertise and insolvency professionals may lack experience and sometimes integrity. Again, these factors may hamper efforts to recover content from the cloud since there may not be a vehicle to support a managed closedown of the company’s affairs. Indeed, the sophistication of the US and UK systems does not guarantee this steady closure and customers may lose their cloud content, infrastructure, platform or software.
\nThe process of liquidation is normally used to bring the affairs of an insolvent company to an end, with an impartial trustee (in the UK a liquidator) being appointed to do this according to detailed procedures set out in laws. Examples are the United States Chapter 7 and the UK Insolvency Act 1986, Part IV. This section will initially consider the United States position before briefly examining the position in the UK. Claims by customers of cloud computing services can potentially give rise to complexities in both jurisdictions that can only be briefly touched upon.
\nThe opening of Chapter 7 liquidation proceedings, an accessible introduction to which can be found at [23], will give rise to an automatic stay under 11 United States Code § 362 (hereafter “USC”) to prevent creditors from taking action to enforce their claims and this gives temporary protection to the debtor while the liquidation is carried out. This is however a time of vulnerability for customers since the trustee, when appointed, may not realise that the company operates a cloud service on which customers depend and may fail to take steps to ensure continuity of service, in particular since funds to do so may be lacking. Even where the trustee takes steps to continue service, s/he may lack specialist skills and experience to operate a cloud service business and may face a steep learning curve in relation to the business, combined with a lean staffing structure and high volume of communications from concerned customers. Moreover, liquidation is not primarily a vehicle to enable ongoing trading. In the US, the business may continue to operate if it is in “the best interest of the estate and consistent with the orderly liquidation of the estate” under 11 USC §721 and this might feasibly enable a temporary operation of the company to enable customer needs to be attended to. There is a risk however that there may be insufficient funds to enable the trustee to continue to operate the business for long enough to enable customers to recover their content and it may be necessary for customers to provide funds if this is to be done.
\nThe main role of the trustee will be to take steps to bring the company’s affairs to an end by selling the company’s assets and using the proceeds to pay off creditors, as far as possible, according to a system of priorities and customers claims will be dealt with as part of this. Since the trustee is dealing with the debtor’s property it will be important for customers to establish their entitlement to the content that they have uploaded, so that it is not included in the estate that the trustee will be looking to sell. Preferably the customer’s ownership of content should have been agreed in any contract with the cloud service provider, although the customer’s ownership of the content is likely to be implied even if the contract does not address the point.
\nAs to the distribution of assets in the liquidation, there is a distinction to be drawn between creditors with claims to specific property, such as items covered by a lien, and those without. The former are known as secured creditors and the latter as unsecured creditors. Unsecured creditors are further divided into those with priority and nonpriority status. In view of the secured creditors’ claims to specific assets, or classes of assets, these assets do not form part of the estate for distribution to creditors. Similarly, customers with ownership of the content uploaded to the cloud are entitled to recover the content, since it does not form part of the estate, but this may be more difficult in practical terms, as discussed elsewhere in this Chapter. Unsecured creditors, in contrast, typically occupy a low level of priority.
\nAs previously noted, there are two types: priority unsecured and nonpriority unsecured. The priority claims, such as the costs of running the bankruptcy, are to be paid first, so that nonpriority claims may have limited prospects for payment. The class of nonpriority unsecured creditors would be those with claims to damages. These might include cloud service customers whose service contracts have been prematurely discontinued, or who have other claims to damages as a result of breaches of the service contract. These claims are unsecured and are not therefore claims to specific assets and so they do not have priority and will have a low ranking in the scheme of priority for payment, as nonpriority unsecured claims.
\nIt is important to look in a little more detail at the claims that customers may have based on service agreements and how they will fare in the bankruptcy. In the liquidation these will be regarded as executory contracts [24] under 11 USC § 365(a), since both parties have ongoing performance obligations at the time of the bankruptcy filing and, as such, the trustee can choose whether or not to continue performance. If the trustee elects to discontinue performance the customer will have merely a claim to damages, which, as discussed in the previous paragraph, is likely to be worthless in the liquidation, and their access to content may be lost. Similar considerations apply in relation to software licences that customers hold, however there are additional protections under 11 USC §365(n) for customers in this instance, since customers can elect to retain rights under the contract to the software and its embodiments, including source code. This does not however require the liquidator to perform any of the licensor’s obligations, such as updating the software, which can present problems for customers unless and until a replacement provider can be found, or unless the liquidator assigns the software to a third party capable of continuing service. Nor are all cloud computing services necessarily protected by this provision, since not all will have the character of software licences, even SAAS contracts, since the customer does not necessarily obtain a copy of the software, s/he merely accesses it online.
\nOngoing trading in liquidation is also potentially difficult in the UK as similar issues will arise. Under the legislation, the liquidator of a company may continue to carry on business “so far as may be necessary for its beneficial winding up”, according to Insolvency Act 1986, Sch 4, para 5, but this does not guarantee that there will be ongoing trading or that any period of ongoing trading will again be long enough to enable customers to recover their content and make alternative arrangements. In addition to the practical problems noted in the US context, the liquidator is not obliged to honour customers’ service agreements and the liquidator has powers under Insolvency Act 1986, s 178 to disclaim unprofitable contracts, which could include cloud service agreements. Where the customer benefits from a software licence one possibility is that the liquidator will prefer to assign the software to a third party, in which case this third party will normally be subject to the licence, see further [25].
\nReorganisation, on the other hand, is designed to enable ongoing trading, through the restructuring of the debtor’s financial obligations. Notable examples are the US Chapter 11 and the UK administration. There are great variations in reorganisation laws globally and some jurisdictions as yet lack suitable procedures. The main objective of reorganisation proceedings is to enable struggling but viable companies to recover from their difficulties, although these procedures are not always used to achieved this. Often reorganisation is used to enable the sale of the company’s underlying business, prior to a liquidation of the company, or to otherwise enable greater returns to be made to creditors in liquidation.
\nTaking the US Chapter 11 as a well-developed system of reorganisation proceedings, the company’s management will become what is termed a “debtor in possession”, under 11 USC §1101(1), unless a trustee is appointed. Briefly, this means that the company’s pre-Chapter 11 management will remain in control, with or without personnel changes. The debtor in possession will formulate a plan of reorganisation, which must be approved by creditors and by the court, and this can enable the debtor to continue trading. The debtor in possession has the power to reject contracts, as discussed in relation to liquidation. A valuable feature of Chapter 11, which also applies in Chapter 7, is the automatic stay in 11 USC § 362 and this will protect the cloud service provider from debt collection efforts by creditors, including lawsuits. Chapter 11 therefore may offer better prospects of continue trading but it is also a relatively expensive process that is used in only a small minority of insolvencies in the US.
\nA new UK procedure, the restructuring plan, is similar to Chapter 11 and would be suitable for larger companies which have viable prospects of recovery from their difficulties. In the UK there is also a more simple option, the company voluntary arrangement in Insolvency Act 1986, Part 1, which enables a company to reach agreement with creditors or members and does not need to be presented to a court for approval. However, the company voluntary arrangement does not provide the company with a moratorium/automatic stay on creditor claims.
\nMoratorium protection can be obtained if the company is first put into administration under Insolvency Act 1986, Sch B1, whether or not the plan is to introduce a company voluntary arrangement or restructuring plan. This is a relatively expensive procedure where an administrator is appointed by the company or a major creditor to take control of the company in circumstances where the company cannot pay its debts, or where it is reasonably likely to become unable to pay its debts. Administration, as it was originally designed, can be used to manage the company with a view to presenting to creditors proposals for how the company can be saved, however it is more often used to achieve greater returns to creditors than would be possible in an immediate liquidation. Administration is not particularly well suited to a managed closedown of a cloud service provider since an appointment must be reasonably likely to achieve the purpose of administration, set out in Insolvency Act 1986, Sch B1, para 3. The primary purpose of administration is to save the company but if this is not reasonably practicable efforts can be focused on achieving a better return for creditors than would be likely if it was closed down without first going into administration, or if that is not reasonably practicable to make a distribution to one or more secured or preferential creditors. Since the managed closedown of a cloud service provider would be likely to add costs without benefit to creditors it is this latter objective that would need to be relied on but there is a difficulty that the administrator must ‘perform his functions in the interests of the company’s creditors as a whole’ and the costs of a managed closedown may reduce the sums available for creditors.
\nProtection can alternatively be obtained via a new procedure, the restructuring moratorium, under Insolvency Act 1986, Part 1A, which offers a cheaper option than administration but potentially a shorter duration of protection. The restructuring moratorium was introduced as part of package of reforms in the wake of the Covid-19 crisis. It enables an eligible company to enjoy the benefit of a holiday from creditor claims while under the supervision of a monitor. The protection offered will be relatively brief, lasting for an initial 20 business days, although this period can be extended. Under the process for obtaining a moratorium where the cloud service provider is not subject to a winding up petition the directors are required to file documents that indicate that the company is insolvent or approaching insolvency and that the company has likely prospects of being rescued as a going concern. It is this latter requirement that would prevent this route being used for a managed closedown of a cloud service provider. A cloud service provider which is subject to a winding up petition will only be able to obtain a moratorium following an order from the court in circumstances where this will provide a better result for the company’s creditors as a whole than would be possible if the company were to be wound up without an initial period of moratorium protection. Since a managed closedown primarily is required for the benefit of customers it may be difficult to argue that it would be for the benefit of creditors as a whole.
\nIt is a weakness that there is arguably a present lack of a reorganisation procedure in the UK that can be used to temporarily facilitate ongoing trading for the managed closedown of a cloud service provider, enabling customers to recover data and source alternative services [26]. None of the many UK procedures is particularly designed for this scenario, since returns to creditors are the priorities.
\nThe provision of protections for users of cloud services is something that can potentially be better addressed by different jurisdictions. Digital economies can offer significant benefits and many countries, including developing countries, are building on this. A legislative framework that can provide security of data and continuity of service in the event of insolvency can support the development of such economies, as it can attract cloud service providers which can then offer confidence to customers that there will not be a sudden and catastrophic loss of services and content. A special procedure for cloud service providers, enabling a managed closedown, would be one possibility.
\nAn example of existing provision for cloud computing insolvencies is Art 567 of the Luxembourg Code de Commerce [27]. As originally enacted this law enabled the recovery of goods entrusted to debtors upon the debtor’s insolvency and in 2012 it was extended to include intangible property such as software in recognition of the growing importance of cloud computing. Such a law would not suffice in itself, since having an entitlement to recover content in the event of the insolvency of a cloud service provider is only one problem and temporary continuity of service to enable recovery of the content is also needed.
\nFunding to enable temporary continuity of service by an insolvent cloud service provider would be a challenge and in the longer-term consideration might be given as to whether a fund can be established to cover the running costs of a cloud service managed closedown. The fund might be created if, for example, service providers are charged a levy, although it is also notable that cloud service providers are supranational in nature and they might be able to avoid any efforts of any one country to charge a levy, similar to the problems that countries face in taxation. Given these practical difficulties it would likely be preferred that customers should pay, although this may give rise to collective action problems, such as holdouts.
\nThis Chapter has provided a brief introduction to a threat to cybersecurity that has as yet received only limited attention. The potential for cloud computing insolvencies is globally significant, given the rapidly rising usage and value of content that is stored in the cloud. Importance also arises from the growth of digital economies in many countries, including developing countries, and it would be desirable for domestic laws to pay attention to this matter. The Chapter has discussed in brief how insolvencies in this sector might be handled in the US and UK and has highlighted problems that would be faced by customers of insolvent cloud service providers. Even these sophisticated jurisdictions do not presently provide effective protection for cloud service customers. It is moreover doubtful that domestic insolvency procedures alone will ever be adequate to address failures in this sector, which is supranational in nature. There is arguably a need for discussion at a global level of how cloud computing insolvencies can be addressed, and how improvements can be made to the infrastructure to support this. There is also a need to identify if there are any other complex areas of supranational technology that will have potential for significant impact of insolvencies, since similar issues are likely to arise in other cases of service supply. This Chapter has focused on cloud computing as there is here a clearly identified risk of insolvency having a significant impact and a need for legislative attention to be paid. In the longer term the development of robust laws to handle cloud computing insolvencies requires collaboration between data scientists and insolvency lawyers and attention on a global scale.
\nI am grateful to Roger Bisson, who first brought the risk of cloud computing insolvencies to my attention and was my co-author on a longer version article, Rebecca Parry & Roger Bisson (2020): Legal approaches to management of the risk of cloud computing insolvencies, Journal of Corporate Law Studies, DOI:
The author declares no conflict of interest.
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\\n\\nOptional Services
\\n\\nIntechOpen has collaborated with Enago, through its sister brand, Ulatus, which is one of the world’s leading providers of book translation services. The services are designed to convey the essence of your work to readers from across the globe in a language they understand. Enago’s expert translators incorporate cultural nuances in translations to make the content relevant for local audiences while retaining the original meaning and style. Enago translators are equipped to handle all complex and multiple overlapping themes encompassed in a single book and their high degree of linguistic and subject expertise enables them to deliver a superior quality output.
\\n\\nIntechOpen Authors that wish to use this service will receive a 20% discount on all translation services. To find out more information or obtain a quote, please visit: https://www.enago.com/intech.
\\n\\nFUNDING
\\n\\nWe feel that financial barriers should never prevent researchers from publishing their work. Please consult our Open Access Funding page to explore funding opportunities and learn more about how you can finance your IntechOpen publication.
\\n\\nBENEFITS
\\n\\nPUBLISHING PROCESS STEPS
\\n\\nFor a complete overview of all publishing process steps and descriptions, go to How Open Access Publishing Works.
\\n\\nSEND YOUR PROPOSAL
\\n\\nIf you are interested in publishing your book with IntechOpen, please submit your book proposal by completing the Publishing Proposal Form.
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\n\n*The price does not include Value-Added Tax (VAT). Residents of European Union countries need to add VAT based on the specific rate applied in their country of residence. Institutions and companies registered as VAT taxable entities in their own EU member state will not pay VAT by providing us with their VAT registration number. This is made possible by the EU reverse charge method.
\n\nOptional Services
\n\nIntechOpen has collaborated with Enago, through its sister brand, Ulatus, which is one of the world’s leading providers of book translation services. The services are designed to convey the essence of your work to readers from across the globe in a language they understand. Enago’s expert translators incorporate cultural nuances in translations to make the content relevant for local audiences while retaining the original meaning and style. Enago translators are equipped to handle all complex and multiple overlapping themes encompassed in a single book and their high degree of linguistic and subject expertise enables them to deliver a superior quality output.
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\n\nBENEFITS
\n\nPUBLISHING PROCESS STEPS
\n\nFor a complete overview of all publishing process steps and descriptions, go to How Open Access Publishing Works.
\n\nSEND YOUR PROPOSAL
\n\nIf you are interested in publishing your book with IntechOpen, please submit your book proposal by completing the Publishing Proposal Form.
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