“An appeal”, explained one of my law school professors as he stretched out his arms, “is like taking off in a plane. Unless you understand the rules of physics, you won’t get the plane off the ground, no matter what grade of jet fuel is in the tank.”

Court appointed receivers commonly assume control over all of a debtor’s property. In assuming that control, the receiver may collect various pieces of the debtor’s leased equipment, and include that equipment in a sale of the debtor’s assets. Further, the court order appointing the receiver will typically grant the receiver a priority charge over all such equipment for its fees, including the fees of its counsel, and any borrowings it may make in the course of the receivership.

The Court of Cassation (29 March 2016, No. 6045) ruled that the look-­back period for claw-­back actionsstarts from the concordato filing, when bankruptcy was declared after a period of time, provided thatboth procedures refer to the same insolvency situation

The case

The Court of Bolzano (5 April 2016) confirms that revolving credit facility agreements providing forancillary set-off and collection terms in favour of the bank can be suspended, but the bank is protectedbecause the amounts collected are controlled by the Judicial Commissioner

The case

The Court of Modena (8 February 2016) challenged precedents of the Court of Cassation ruling thatdelayed payment of secured creditors is allowed only if the timing would not be shorter in bankruptcyliquidation

The case

One of the most vexing commercial insolvency issues is the competition between creditors with security on environmentally troubled property and environmental authorities looking for deep pockets to fix the environmental problems. From a creditor’s point of view, a recent Alberta decision is a potential respite from environmental obligations being imposed on creditors of the owners of environmentally troubled property.

Background

On 26 April 2016, the Italian Government has introduced a new reform to shorten the length of the recovery of credit, by approving the decree law no. 59 (the Decree), entered into force on 3 May 2016. The Decree  aims  at  fostering  and facilitating  the  recovery  of  credit throughout enforcement  and insolvency  proceedings.

The main innovations concern:

The guiding forces for a review of EC Regulation No. 1346/2000

The downturn in the economy, which in recent years has severely affected businesses at all levels within the European Union, has pushed many countries to review their internal legal systems on insolvency and restructuring proceedings. Indeed, the demand for adequate rules increases in times of crisis, prompting reforms where existing legislation is incomplete or unable to offer legal instruments capable of responding to changing economic conditions.

The European Court of Justice contradicts the Italian Court of Cassation and Constitutional Court andrules that a partial payment of VAT is possible, provided that an independent expert certifies that there isno better alternative for the Tax Authorities

The case

The Court of Cassation (19 February 2016, No. 3324) ruled that unauthorized payment of pre-­‐petitionclaims mandate a stop of the concordato procedure according to Art. 173 of the Italian Bankruptcy Lawonly if a prejudice follows for the creditors

The case