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
In its recently issued decision in Husky International Electronics, Inc. v. Ritz, a 7-1 majority of the Supreme Court has clarified that intentionally fraudulent transfers designed to hinder or defraud creditors can fall within the definition of “actual fraud” under Section 523(a)(2)(A) of the Bankruptcy Code and can sometimes result in corresponding liabilities being non-dischargeable in a personal bankruptcy proceeding.1
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:
In a March 29, 2016 decision,1 the United States Court of Appeals for the Second Circuit (the "Court of Appeals") held that creditors are preempted from asserting state law constructive fraudulent conveyance claims by virtue of the Bankruptcy Code's "safe harbors" that, among other things, exempt transfers made in connection with a contract for the purchase, sale or loan of a security (here, in the context of a leveraged buyout ("LBO")), from being clawed back into the bankruptcy estate for distribution to creditors.
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
The Court of Forlì (3 February 2016) allowed a competitive bid process to select the purchaser of abusiness unit during the phase following a concordato “pre-‐filing”
The case
“It is possible for the by-‐law to provide that the equity capital, which is mentioned by article 2437-‐ter, second paragraph, of the Civil Code for the purpose of liquidation of shares in case of withdrawal (but also, in case of mortis causa pre-‐emption right, because of the statement of the article 2355-‐bis, third paragraph of the Civil Code) is assessed pursuant to the criterion which consider the use of assets on the going concern perspective”