The decision of the Supreme Court of 20 April 2017, No. 9983 confirms that the bank can be held jointly liable with the directors towards the company, on different grounds from those making the bank accountable to individual creditors

When you are focused on the day-to-day running of a business, it can be all too easy to miss the warning signs that you may be at risk of insolvency. Often, the signs might be interpreted as a “blip” or a “minor issue” paired with the assumption that the company can trade out of it. In this article, Stephen Young identifies some of the key warning signs that directors should be aware of.

A set of new insolvency rules are coming into force, as of April 6 2017, as Stephen Young explains in the following bulletin. In short, the previous insolvency rules that have been in force since 1986 no longer apply and instead a whole new set of rules now must be used.

The new Insolvency (England & Wales) 2016 rules will apply to all cases, both existing and new.

In short, the main changes are as follows:

1. All of the Parts and Numbering of the old rules have been completely changed so each type of insolvency has its own new Part.

The Court of Florence (November 2, 2016) confirmed that the debtor can retain part of his assets, with a view to support the company’s recovery and in derogation to principles of liability of the debtor.

The case

A company applied for concordato preventivo, based on a plan providing for, on one side, the sale of those assets not functional to the business and, on the other side, the company to continue to trade retaining those other assets which were needed for the activities to be carried on.

A ruling of the Court of Padua of 31 December 2016 is compared with few other known Court decisions regarding the extension of the effects of a debt restructuring agreement to dissenting financial creditors

The case

Two companies having an indebtedness mainly towards banks and leasing companies, jointly submitted to the Court a request for confirmation of a debt restructuring agreement providing for a two-year moratorium of payment of principal and a restructuring of interests.

The Court of Cassation (decision No. 4915 of 27 February 2017) lowered the threshold allowing the Bankruptcy Court to review the feasibility of the concordato preventivo proposal.

The case

The Court of Appeal has recently overturned the commonly held belief that a validation order would normally be made if the disposition made by a company subject to a winding up petition was done so in good faith and in the ordinary course of business at a time when the parties were unaware of the existence of the petition.

1. The starting point

Section 127 Insolvency Act 1986 provides:

With the judgment No. 25162 of 7 December 2016 the Court of Cassation refers the expression set forth in Art. 67, third paragraph, a) of the Italian Bankruptcy Law to the custom between the parties of the specific commercial relationship and not to the wider use of trade

The case

An insolvency receiver sued a former supplier of the bankrupt company, requesting the claw-back of payments made by the company.

Law No. 232 of 11 December 2016 (Budget Law for 2017), in force since 1st January 2017, amended Art. 182-ter of the Italian Bankruptcy Law by repealing the tax consolidation rule and setting aside the interpretation that the tax settlement thereby provided could be chosen as an alternative to a proposal to tax and social security agencies, based on ordinary rules

The tax settlement before Law No. 232 of 2016

The Court of Cassation with a decision of 5 December 2016, No. 24791 confirmed that receivables of advisors who assisted the debtor with respect to a filing for concordato preventivo shall be considered as super-priority claims in the following insolvency liquidation, unless the advice is challenged in the merits

The case