The law of the State where an insolvency procedure is opened, applicable according to Art. 4, second paragraph, lett. m) of the Regulation (lex concursus), can be unenforceable pursuant to Art. 13 of the Regulation if according to the lawapplicable to the contract (lex contractus) the transaction cannot be challenged.

The case

The decision of the Court of Rovereto of 13 October 2014 and the Court of Bergamo of 26 September 2013 tookopposite stands on the issue of the allocation, for the purposes of the concordato preventivo proposal by the debtor, ofcash generated by future operation of the business following confirmation of the proposal.

The case

The Italian Supreme Court (judgement No. 14552 of 26 June 2014), ruled that the disclosure of acts in fraud carried out by the debtor causes the admission to concordato preventivo to be revoked according to Article 173 IBL, even in case of approval by the creditors.

The case

The decision of the Court of Treviso of 26 February 2015 admitted a concordato proposal providing for a partial payment of receivables having a lien over the entire estate and for payment of unsecured creditors out of the higher liquidation value of the debtor’s assets according to the concordato plan, as compared to the bankruptcy liquidation value

The case

Two recent decisions of the Court of Reggio Emilia (18 December 2014) and of the Court of Palermo (13 October 2014) followed the Supreme Court’s case law according to which companies  held  by  public agencies can be declared bankrupt, even in case they provide “in house” services mainly to shareholders

The cases

L’istituto del concordato preventivo con continuità aziendale (art. 186-bis della legge fallimentare) e il suo impatto sul quadro normativo dei contratti pubblici (sul punto cfr. “Concordato preventivo con continuità aziendale nei contratti pubblici”, giugno 2013, in www.nctm.it/wp-content/uploads/2013/11/CPCP) hanno dato origine ad applicazioni di giurisprudenza contrastanti, che portano allo stato attuale ad identificare per esso diverse modalità applicative.

The institution of composition with creditors enabling business continuity (Article 186-bis of the Bankruptcy Law) and its impact on the legislative framework of public contracts (on the matter see “Composition with creditors enabling business continuity in public contracts”, June 2013, in www.nctm.it/wp-content/uploads/2013/11/CPCP) have given rise to contrasting applications of case-law, and as matters stand, the institution is often applied in different ways.

With judgment No. 10105 of 9 May 2014, the Italian Supreme Court of Cassation ruled that trusts can be recognized inItaly, when the settlor is insolvent, only if they are consistent with the purposes of the procedure.

The Case

With judgment No. 5945 of 11 March 2013, the Italian Supreme Court of Cassation addressed a key issue under EC Regulation No. 1346/2000: the location of the “center of main interests” (COMI) of the company according to factors recognizable by third parties.

The Case

The Court of Milan with a decision on 28 May 2014 addressed some heavily debated legal issues: the Bankruptcy Courtmay authorize the debtor to terminate credit facility agreements when the debtor submitted a pre-filing for concordato preventivo (known as “concordato con riserva”)?

The Case