With the decision No. 1195 of 18 January 2018, the Court of Cassation ruled on the powers of the extraordinary commissioner to require performance of pending contracts and on the treatment of the relevant claims of the suppliers

The case

The Court of Cassation with a decision of 25 September 2017, No. 22274 confirms that Art. 74 of the Italian Bankruptcy Law provides a special rule, which does not apply to cases to which it is not explicitly extended

The case

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

Applicable law

The Italian Government has been delegated to enact 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 set of priorities among creditors

Introduction

The Court of Padua (15 June 2017) ruled that, in the procedure provided by Legislative Decree No. 270/1999, the three-year statute of limitations period provided by Art. 69-bis of the Italian Bankruptcy Law starts from the declaration of insolvency and not from the authorization of the plan for the sale of the business

The case

The Court with two recent decisions (6 April 2017, No. 8903 and 13 April 2017, No. 9547) confirmed that the Public Prosecutor is entitled to file for bankruptcy also in case he became aware of the insolvency in the course of a probe regarding other companies or individuals and within the concordato preventivo procedure.

The case

A decision of the Court of Rimini dated 1st December 2016 states that the competitive bid process provided by Art. 163-bis of the Italian Bankruptcy Law is not mandatory when there is a strict connection between the lease of business and a proposed third-party loan to support the concordato proposal

The case

The Federal Court of Australia has provided judicial guidance about what constitutes taking possession by seizure under the Personal Property Securities Act 2009 (Cth) ("PPSA"). Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866 indicates that a receiver taking possession of personal property in accordance with a valid security agreement will not perfect a security interest by way of possession.

Background

In Short

The Situation: Frequently, the statutory moratorium period provided to voluntary administrators to restructure an insolvent company is too short to find a solution. Administrators often utilise "holding" deeds of company arrangement to extend the period of moratorium and "buy" time to investigate potential restructuring opportunities for the future of the company. A creditor recently challenged this industrywide practice by arguing that holding DOCAs are invalid.