[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN ITALY] 55 55
also creditors who become creditors during the judicial liquidation proceedings and this prohibition does not find the same application in all procedures and does not apply to rescue plans. In relation to the other proceedings, the effectiveness of this prohibition is regulated differently depending on the procedures and in particular: i) With reference to restructuring agreements, the suspension of the precautionary and executive actions on the debtor's assets is valid for sixty days from its publication in the Registry of companies; ii) Regarding composition with creditors, both for liquidation and conservative purposes, this prohibition applies from the date of publication of the appeal in the Registry of companies and until the time the decree approving the composition with creditors becomes final; iii) Finally, in the event of judicial liquidation, the provision applies from the day of the declaration of judicial liquidation for the entire duration of the judicial liquidation procedure. 2.3. Contracts pending in the composition with creditors. With reference only to the proceeding of the composition with creditors, the legislator for the debtor’s protection has provided the possibility for him/her to ask the Court the authorization to terminate contractual relations if they are still in force, (i.e., not yet fully executed nor by one, or by the other contractor) on the date of submission of the appeal for admission to the composition with creditors. This rule also applies against the will of the performing contractor.
The authorization to the Court can be requested and granted when the suspension or winding up appear necessary or perhaps even only convenient to execute the composition with creditors plan. As an alternative to winding up, the debtor can also request the possibility of suspending the contract for a period of sixty days, which can be extended only once. This is the current situation, that, as said above, will be modified because of the introduction of the new provisions. 2.4. The Italian procedure for negotiated settlement. With the changes made by the legislative decree n. 83/2022, new measures suitable to promptly detect the presence of a state of crisis have been made more important, first of all, the new provision of the negotiated settlement of the crisis . This is a new procedure that undoubtedly represents the most significant action in providing a new tool to support companies in difficulties. It is firmly aimed at their recovery and presents the following characteristics. In particular: i) This procedure can be used by all commercial entrepreneurs, as well as agricultural entrepreneurs – that normally according to previous legislation cannot be adjudicated bankrupt -. ii) The appointment of an “expert” is required. The presence of this professional aims to facilitate negotiations between the entrepreneur, the creditors, and any other interested parties in order to overcome the condition of equity or economic-financial imbalance.
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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