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

Traditionally in Italy the financial distress of a corporation was treated in a very strict way through proceedings aimed at the dissolution of the company, the sale of its assets and the replace of the directors with commissioners appointed by Public Bodies.

Indeed, should the enterprise become insolvent (i.e. not able to regularly pay its debts), it was unavoidably destined to be declared under bankruptcy or be put into extraordinary administration, a special form of insolvency procedure dedicated to the largest companies and aimed at preserving the workforce.

Italian bankruptcy law — Royal Decree No. 267 of 16 March 1942 — (the Bankruptcy Law) underwent a substantial reform between 2005 and 20091, mainly aimed at introducing (i) a more efficient regulation of the pre-bankruptcy agreement procedure (concordato preventivo)2 and (ii) new pre-bankruptcy schemes of arrangements, in the form of the out-of-court debt restructuring plan (piano attestato di risanamento)3 and the debt restructuring agreement (accordo di ristrutturazione dei debiti)4.

During the last few years, Italian bankruptcy law has been shifting from a traditional "procedural/judicial" model, based on the central role of courts called upon to safeguard the "public interest" involved in bankruptcy by actively directing the procedure and making the most important decisions, to a model that recognizes the private interests of creditors. Under the new paradigm, creditors are conferred with decisional powers, while courts maintain a principally supervisory role.

Overview of Insolvency Rules and Restructuring Procedures Pursuant to Italian Bankruptcy Law

On August 26, 2011 the Italian Supreme Court issued the decision no. 32899 stating that shareholders of a company will commit an offence if they unreasonably provide funds to a company in distress, rather than proceeding with the immediate liquidation of the company.

In an effort to re-­launch the economic growth, with Law Decree No. 83/2012 (so called “Decree on Development”) the Italian government, inter alia, implemented several significant changes to Italian Bankruptcy Law (legge fallimentare).

On July 30, 2010 the Italian Parliament passed Law 122/20101 which, among others, improved the restructuring proceedings governed by the Italian Bankruptcy Law2 (“IBL”).

The improvements operate on two fronts of restructuring deals which had proven to be still unclear (and thus risky) despite the recent reform:

On May 21, the bankruptcy trustee for Mt. Gox advised depositors that the bankruptcy case in Tokyo was proceeding.  The information contained in the email was limited in scope, guarded and of little use in understanding the trustee’s view of how the bankruptcy ultimately may resolve. 

Recently, Japanese bulk-shipping company Daiichi Chuo Kisen Kaisha sought bankruptcy protection in both Tokyo and New York. The company, which features a fleet of 185 vessels used primarily to transport cargo such as limestone, cement and coal overseas, commenced its United States bankruptcy proceedings by filing a Chapter 15 petition in the United States Bankruptcy Court for the Southern District of New York.