The Italian Government further integrated the rules applicable to debt restructuring agreements, allowing the debtor to cram down the agreement also to dissenting minority lenders, in two different frameworks: a) stand-still agreements for a “temporary moratorium” pending negotiations, and b) the actual agreements for the rescheduling and restructuring of the outstanding debt.

According to Legislative Decree. No. 175/2014, in case of defaulting transferee / buyer, the transferor / supplier is entitled to recover the VAT originally paid to the Treasury, under the condition that the transferee / buyer - who has not paid his debt - has entered into a debt restructuring agreement with creditors pursuant to Article 182-bis of the Italian Bankruptcy Law (IBL) or into an out-of-court reorganization plans pursuant to Article 67, third paragraph, letter d) of the Italian Bankruptcy Law (IBL)

The New Provision

With a decree of 11 March 2015 the Tribunal of Reggio Emilia, recalling the case-law principle of the socalled “consecution” of insolvency procedures, rejected the pleading in the proof of debt procedure of a creditor who requested its own post-concordato debt towards the then bankrupt company to be set off against its own pre-concordato receivable.

The case

The Tribunal of Milan allowed a concordato preventivo proposal to be amended, providing that additional resources for the creditors could be made available through a lien on real estate property belonging to a shareholder of the company.

The case

NCTM Studio Legale Associato assisted a company in filing and subsequently amending a concordato preventivo proposal before the Tribunal of Milan.

In the past decade, Chapter 11 practice has witnessed the rise of a new phenomenon: structured dismissals.¹ Broadly speaking, the term structured dismissal is an umbrella term for a dismissal order that includes additional bells and whistles, such as releases, protocols for claims administration or provisions permitting the gifting of assets to junior stakeholders. Like a Chapter 11 plan, a structured dismissal often identifies how proceeds are to be distributed while retaining jurisdiction in the bankruptcy court for claims administration and other specified matters.

On May 26, 2015, the U.S. Supreme Court issued its ruling in Wellness International Network, Ltd., et al. v. Sharif.¹ The Wellness decision clarifies one of the most significant open issues created four years ago by the Court’s highly controversial decision in Stern v.

In a May 4, 2015, decision, the U.S. District Court for the Southern District of New York rejected secured lenders’ appeals of a controversial bankruptcy court decision confirming the Chapter 11 plan of reorganization of MPM Silicones, LLC (also known as “Momentive”). The district court opinion, by Judge Vincent Briccetti, affirms the bankruptcy court’s decision that Momentive’s senior secured lenders could be “crammed down” at a below-market interest rate, without payment of a make-whole premium.

The European Court of Justice (Judgment of 4 September 2014, C-327/13), held that in accordance to the ECRegulation No. 1346/2000, a secondary insolvency proceeding in the Member State where the debtor has its registeredoffice – which does not coincide with the centre of its main interest (COMI) – may be opened at the request of creditorsentitled under the law of that State.

The case

A  focus  on  the  different  interpretations  concerning  the  treatment  of  claims  for  costs  allocation  in  legal proceedings where a creditor is successful against a debtor admitted to a concordato preventivo procedure

The issue

The Court of Padua (6 March 2015) ruled that the authorization can be granted – provided that it is a case of urgency as required by law – only to the extent that the interests of creditors are best protected, through a competitive sale procedure setting a reasonable timing and an appropriate data room.

The case