[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN ITALY] 54 54
plan there is no provision for judicial review, both in the composition with creditors and in the restructuring agreements, there is the intervention of the judicial authority and in particular , in the restructuring agreements there are minimal procedural aspects and the Court's control but not in the executive phase; in the composition with creditors there is, instead, a keen control of the judicial authority in every phase. On the other hand, with reference to judicial liquidation and to composition with creditors for liquidation purposes, the most important difference is that while with the composition with creditors, the entrepreneur keeps the administration of his assets and the business under the supervision of the judicial commissioner, with the judicial liquidation the debtor loses the management of the company that is deferred to the insolvency practitioner appointed by the competent Court. 2. The protection granted to the debtor against its creditors. From this point of view, it is possible to conduct a joint analysis of the procedures, since the protections put in favor of the debtor towards the creditors are almost applicable to all the procedures. 2.1. Irrevocability of deeds, payments and guarantees. First of all, the provision for which, in the event of subsequent judicial liquidation, the deeds, payments and guarantees put in place in execution of i) rescue plan, ii) restructuring agreement, iii) composition with creditors cannot be subject to claw back action. Article 67 letter d) and f) of the Royal Decree, in force until September 2021, in fact establishes that are not subject to the claw back action: “the deeds, payments and guarantees granted on the
debtor's assets if implemented in execution of a plan that appears suitable to allow the reorganization of the debt exposure of the company [...] "and the deeds, payments and guarantees put in place in execution of the composition with creditors [...], as well as the approved agreement pursuant to article 182bis, as well as the deeds, the payments and guarantees legally put in place after the filing of the appeal pursuant to article 161 ”. 2.2. Prohibition to continue or initiate precautionary and executive actions on the debtor's assets. As a guarantee for the debtor, it is forbidden to continue or to start exercising individual precautionary and executive actions on the debtor's assets. Preliminarily, it is necessary to clarify what is meant by " debtor's assets" and to which creditors the above-mentioned prohibition refers. With reference to the first aspect, it can be stated that " debtor's assets " means the assets and credits of the entrepreneur admitted to the insolvency proceedings acquired to insolvency estate. Otherwise, assets and rights of a strictly personal nature, maintenance payments, salaries, pensions, wages and what the debtor earns with his/her activity within the limits of what is needed for him/her and his/her family, things that cannot by law be foreclosed, etc. The property owned by third parties, co- affiliated or with guarantors, directed in some way to guarantee the bankrupt's obligations are also excluded from the application of the prohibition. With regard instead to the individuals to whom this prohibition refers, it is specified by the rules that the recipients are not only creditors who have accrued pre-judicial liquidation credits, but
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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