With two decisions (No. 1895/2018 and No. 1896/2018), both filed on 25 January 2018, the Court of Cassation reached opposite conclusions in the two different situations

The case

The Court of Cassation with the decision of 3 April 2017, No. 8632 ruled that the confirmation order of the Bankruptcy Court can be appealed, even when there were no oppositions to confirmation, if the Court unilaterally amended the proposal approved by the creditors

The consequences for cross-border insolvencies will largely depend on how Brexit is implemented, but will not affect schemes of arrangement

Foreword

Understanding and mastering cross-border insolvency requires a thorough knowledge of the different domestic insolvency regimes, all of which have distinctive procedures and rules on jurisdiction and recognition of foreign proceedings. Creditors and debtors look for the most favourable system: in this framework, the UK insolvency system is usually considered “creditor-focused”.

 The Italian Government started the legislative process for a comprehensive restatement of the whole set of rules of insolvency procedures, with specific innovative addresses regarding (to mention only the most important) the concordato preventivo procedure, venue rules, an out-of-court mediation alert process to timely address a risk of insolvency, new forms of security and a streamlined se

Lawmakers introduce further measures in order to stimulate new loans after the pre-filing for concordato preventivo or for a debt restructuring agreement, when it is urgent to prevent an unrecoverable prejudice to the business

The context

With the decision No. 1649 of 19 September 2017 the Court of Appeals of Catania followed the interpretation according to which a spin-off is not subject to the avoiding powers of a bankruptcy receiver

The case

La Cassazione 20 aprile 2017, n. 9983 conferma un proprio precedente secondo cui la banca può essere ritenuta responsabile per concorso nell’illecito, distinguendo la fattispecie da quella della concessione abusiva di credito

 The Court of Rovigo (1st August 2016) confirms that the debtor shall regularly perform obligations arising after the concordato filing from an existing contract, when the debtor elects not to apply to the Court to terminate it

The case

The Court of Alessandria (18 January 2016) addressed a series of issues regarding various rules meant to allow preserving the business in the concordato preventivo procedure, sell the business through competitive bids, lease the business prior to the application to commence the procedure, "mixed" concordato schemes and objections which key continuing suppliers can raise for past debts

The case

Creditors being now allowed to make competing concordato proposals restricts the exclusive powers of the debtor, which are now limited to the choice to commence the procedure, while on the other side it is now always mandatory that a competitive bid process is carried on for the sale of business units and assets, when the proposal of the debtor provides for an already designated buyer

Concordato competing proposals by creditors