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:
On May 3, 2016 the Italian government approved Law Decree No. 59 (the “Decree”) which, inter alia, provides for new types of security and introduces streamlined in-court and out-of-court enforcement procedures. In addition, the Decree mandates the setting up of a centralized electronic register for security enforcement proceedings and insolvency and pre-insolvency restructuring proceedings. The Decree aims to facilitate financings and secondary debt transactions by reinforcing creditors’ rights and providing more flexible instruments to lenders and borrowers.
Law Decree no. 59 of 3 May 2016, which is already in force although it will require formal conversion into Law within 60 days in order not to lose its validity.
Among the provisions of the Law Decree, of particular relevance is the introduction of a new type of floating charge, namely “non-possessory pledge”, provided for by art. 1 of the Law Decree.
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 Milan (19 February 2016) adopts a restrictive approach and rules out that the special rulesprovided for concordato “preserving the business” (“concordato con continuità aziendale”) can applywhere the plan includes a lease of business arrangement
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”
Introduction
On January 28 2015 the minister of justice set up the Rordorf Commission, a ministerial commission to develop and submit draft legislation designed to reform, review and reorganise the rules governing insolvency procedures in Italy. On December 29 2015 the Rordorf Commission completed its proceedings and submitted a draft statutory instrument delegating powers to the government "for a comprehensive reform of the existing rules on business crises and insolvency".
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
Il decreto legge n. 59 del 3 maggio 2016, pubblicato in pari data in Gazzetta Ufficiale Serie Generale n. 102, entra in vigore in data odierna, 4 maggio 2016, pur richiedendo formale conversione in legge entro 60 giorni, pena la perdita di efficacia.