La Corte di Cassazione a Sezioni Unite è stata chiamata a pronunciarsi, ex art. 374 c.p.c. co. 3, in merito alla possibilità di dichiarare il fallimento di un imprenditore in pendenza di procedura di concordato preventivo aperta nei suoi confronti. Infatti, la Corte di Cassazione, sez. I civile, con ordinanza interlocutoria 7 febbraio – 30 aprile 2014 n. 9476, non condividendo il precedente orientamento delle Sezioni Unite n. 1521/2013, ha rimesso la decisione alle Sezioni Unite, affinché venga emessa la decisione del ricorso.
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
With judgment No. 5945 of 11 March 2013, the Italian Supreme Court of Cassation addressed a key issue under EC Regulation No. 1346/2000: the location of the “center of main interests” (COMI) of the company according to factors recognizable by third parties.
The Case
The Court of Milan with a decision on 28 May 2014 addressed some heavily debated legal issues: the Bankruptcy Courtmay authorize the debtor to terminate credit facility agreements when the debtor submitted a pre-filing for concordato preventivo (known as “concordato con riserva”)?
The Case
The Tribunal of Milan with a decision of 12 June 2014 took a stand which is in sharp contrast with mainstreamcase-law, with respect to clauses – widely used as common practice in distressed assets deals as part of“concordato preventivo” restructurings based on an interim lease of business period while the insolvencyproceeding is pending – allowing the lessee to apply rental fee payments to the final purchase price of the business,once the “concordato” is confirmed and the sale can take place
The procedure of composition with creditors aimed at business continuity (“concordato preventivo con continuità aziendale”, provided by art. 186-bis of the Bankruptcy Law) has a major impact on the rules governing public contracts, above all with reference to the requirements requested both for the participation of economic operators in the public tender procedures and for their capacity to enter into agreements with public entities.
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:
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.