In a client update released earlier this month, we discussed the recent decision of the Ontario Court of Appeal in the CCAA proceedings of Indalex Limited. In that case, the Court decided that Indalex’s pension plan wind-up deficiency claims had priority over Indalex’s CCAA secured lender in the context of that case. Of concern is the "chill" that decision may have on secured lending in Ontario to borrowers that sponsor defined benefit pension plans.
There has been no shortage of victims in this financial crisis. Pensions and retirement savings have been severely reduced, jobs have been lost and once powerful financial institutions have failed. But, there is, perhaps, another victim that has largely gone unnoticed: the rule of law.
In his Evil Empire speech before the British House of Commons in June 1982, President Ronald Reagan refocused American political values on the rule of law.
Directive 2014/59/EU (the "BRRD” or Bank Recovery and Resolution Directive), establishing a framework for recovery and resolution of banks and investment institutions, was implemented in Italy with the Legislative Decree Nos. 180/2015 and 181/2015
Introduction
Con il D.Lgs. 180/2015 e D.Lgs. 181/2015 è stata recepita la direttiva 2014/59/UE (c.d. “Direttiva BRRD”Bank Recovery and Resolution Directive) che istituisce un quadro di risanamento e di risoluzione deglienti creditizi e delle imprese di investimento
Premessa
The immediate application of the new section no. 120 TUB and the scope of its anatocism prohibition is the centre of a case-law dispute which originated from a series of inhibitory proceedings promoted by a consumer association in order to make ascertain the unlawful capitalization practiced by Banks of the passive interests in bank accounts. Now that said interim proceedings has been defined a first summary can be drawn.
Two main interpretative options so far emerged:
A decision of the Court of Rimini dated 1st December 2016 states that the competitive bid process provided by Art. 163-bis of the Italian Bankruptcy Law is not mandatory when there is a strict connection between the lease of business and a proposed third-party loan to support the concordato proposal
The case
The Tribunal of Milan with a decree of 17 September 2015 ruled that the enforcement of a bank guarantee, pending therequest by the debtor to authorize the stay or termination of the same in a concordato preventivo procedure, bars thedecision by the Tribunal
The case
On 27 July 2017 Law-Decree No. 99 of 25 June 2017 has been converted into law, which established special rules applicable to the «liquidazione coatta amministrativa»procedure, as well as the sale of the banking business units including assets and liabilities of the two banks, with the financial support by the Italian State. Nctm assisted Bank of Italy, the Ministry of Economy and the Liquidation Commissioners in the sale to Banca Intesa.
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
La Cassazione 3 aprile 2017, n. 8632 ha stabilito che il decreto di omologazione può essere reclamato, anche in assenza di opposizioni, in relazione ad addizioni estranee alla proposta introdotte d’imperio dal Tribunale, che non rappresentino semplici formule organizzative della fase di esecuzione del concordato