RICERCA ITALIANA     

The reform of Bankruptcy Law: results and perspectives in the light of the experiences carried out in Europe and the U.S.A.

Università degli Studi Roma Tre

Abstract

Between 2005 and 2006, Bankruptcy Law underwent in Italy the most radical reform ever introduced since 1942 (decreto legge 14 marzo 2005, n. 35, converted into Legge 14 maggio 2005, n. 80, also containing a delegation to the Government for further amendments, later implemented by the decreto legislativo 9 gennaio 2006, n. 5). The lawmaker, besides agreeing with well-established jurisprudential trends, introduced a number of innovations in those institutes which are more relevant in practice. Making use of the work done by many Study Committees, the reform has somehow borrowed from the experiences of foreign legal systems.
The first year of enforcement of the new version of the Italian Bankruptcy Act pointed out the usual and understandable imperfections of the new law, particularly as regards the doubts raised by the rules on bankruptcy proceedings’ subjective requirements (i.e. “who” is subject to their application), on the application of such proceedings to corporate enterprises, on assets liquidation and on arrangements or compositions with creditors. For these reasons, the Government chose to make use of the powers conferred by the enabling act (legge n. 80/2005) issuing the decreto legislativo 12 settembre 2007, n. 169, which will come into force starting from January 1st, 2008. Although appreciable, such delegated decree is affected by the need to respect rather short issuing deadlines and just tries to make up for the most evident faults of the Bankruptcy A >>>

Principal Investigator

Giuseppe Terranova Università degli Studi ROMA TRE

Research Objectives

The project aims at highlighting those points of the Bankruptcy Law requiring second thoughts by the lawmaker and at suggesting some directions which could be followed by the new legislative measures, in order to reconcile the ratio and the form of old and new institutes with economy’s modern needs. The final target requires the preliminary achievement of two intermediate objectives. On one hand, it is necessary to bring to light the more or less recent history of each institute of Bankruptcy Law, either deriving from Italian regulations or imitating foreign models: this could allow to verify its level of flexibility, as concerns the needs to be met, and to identify the external limits coming from the necessity to keep into account the interests protected by other rules.
On the other hand, it is necessary to examine – with the help of comparatist and juseconomic analysis – a series of hypothesis concerning the effects which particular kinds of regulations can produce, or risk to produce, on the market and national economy. As a matter of fact, it is well known that the level of the economic development of a Country is strongly affected not only by Tax Law and Labour Regulations, but also by the treatment applied by the State to enterprises in crisis conditions: this with a particular reference, on one side, to the ability of foreseeing selections criteria suitable for making a clear distinction between those enterprises worth to be protected by means of programmes >>>

First Results

The results expected by the research consist in achieving the aims fixed at point 11 of the present project. Their importance for a technical knowledge progress in the field of reference can really have a strong impact; this because such results can influence the way to conceive bankruptcy regulations, not only from the point of view of the operators of that area, but also from the point of view of the lawmaker himself. As already mentioned at point 11 of the project, the research’s aim is the drafting of a kind of White Book for urging a really organic reform.
The possible application potential is more than evident, as a different way to conceive the reasons underlying the different institutes inevitably affects the arguments’ iter followed in sentence motivation, changing the way to enforce the existing rules and to fill in the gaps always present in every normative text.

Timescale

12 months

National and international background

In the present legislation, Bankruptcy Law seems to be divided into the will to protect “financial” creditors, assuring them the complete and unconditioned working of the guarantees acquired before the proceedings’ opening, the attempt to protect medium-sized enterprises, avoiding them to fail, and the desire to saveguard occupational levels apart from the worthiness of the enterprise, that is, from the activity’s ability to produce enough income flows to cover all the costs implied. Of course, such trends damage small creditors and, after all, also the interests of those same medium-sized enterprises (mainly suppliers’ firms) and of those same workers that the law tries to protect – even if in a very confused way – without making use of a systematic approach.
So far the matter has not been resolved, either by the “decreto correttivo” of December 12th, 2007, or by the scholars and the courts:
- the “decreto legislativo n. 169 del 2007” had to limit itself to some rules which can be considered as concerning details, often procedure’s details. Its most relevant interventions regard the modification of the subjective requirements for bankruptcy declaration (the criteria foreseen by the new text of the article 1 of the Italian Bankruptcy Act furtherly restrict the concept of small entrepreneur, such as considered from the point of view of bankrupcty, so widening the limits of the subjects exempted from bankruptcy proceedings), the attribution to the creditors >>>