In the Schmid case the European Court of Justice ruled on the issue of jurisdiction of the Courts of a Member State ofthe EU where an insolvency procedure was commenced, whose receiver started a claw-back action against a defendantdomiciled in a non-Member State

The Case

The Tribunal of Milan with a decision of 12 June 2014 took a stand which is in sharp contrast with mainstreamcase-law, with respect to clauses – widely used as common practice in distressed assets deals as part of“concordato preventivo” restructurings based on an interim lease of business period while the insolvencyproceeding is pending – allowing the lessee to apply rental fee payments to the final purchase price of the business,once the “concordato” is confirmed and the sale can take place

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

It has not taken long for another bankruptcy court to question the propriety of allowing secured creditors to credit bid their loans. You may recall that in the case of Fisker Automotive Holdings, Inc., et al. a Delaware bankruptcy court limited a creditor’s ability to credit bid based on self-serving testimony from a competing bidder that it would not participate in an auction absent the court capping the secured creditor’s credit bid.

In a recent decision that has captured the attention of the U.S. secondary loan market, the United States District Court for the Western District of Washington starkly concluded that hedge funds “that acquire distressed debt and engage in predatory lending” were not eligible buyers of a loan under a loan agreement because they were not “financial institutions” within the Court’s understanding of the phrase.

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.

A recent decision in the bankruptcy case of Fisker Automotive Holdings, Inc., et al. has called into question a long-held belief that secured creditors hold dear: that debt purchased at a discount can nonetheless be credit bid at its full face amount at a collateral sale. While it remains to be seen how other courts will interpret Fisker, this decision has the potential to restrict participation in Bankruptcy Code section 363 sales and dampen liquidity in the robust secondary markets.

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.