On May 25, 2010 the Italian Cabinet of Ministers approved Law Decree n. 78/2010 containing provisions designed to support stabilization within the financial sector and to promote economic competitiveness (the “Law Decree”). The Law Decree, published on the Official Gazette on May 31, 2010 and effective immediately (however, no longer effective if not converted into law within 60 days), introduces initiatives across a wide range of economic sectors and enacts measures designed to shore up Italy’s economy and foster competiveness through the goal of reducing the ratio between the annual deficit and Italian GDP to below 3% in compliance with the provisions of the Maastricht Treaty.

 Article 48 of the Law Decree (Provisions on insolvency proceedings) significantly amends the previous Royal Decree No. 267 of March 16, 1942 (the “Italian Bankruptcy Law”) providing for, inter alia:

(i) the new Article 182-quater of the Italian Bankruptcy Law which grants super-seniority to loans made by a bank or authorized financial intermediary (A) pursuant to court-ratified pre-insolvency work out agreements with creditors (concordato preventivo) or a court–ratified restructuring agreement under Article 182-bis of the Italian Bankruptcy Law (such super-seniority status also applies to up to 80% of the value of shareholders’ loans) or (B) made in view of the filing of a work-out agreement or restructuring agreement for court review, provided that the agreement is subsequently ratified. These measures provide an important new tool for providing new financing to distressed companies;

(ii) three new paragraphs in Article 182-bis of the Italian Bankruptcy Law, which provide for a stay of action during the work-out or restructuring negotiations. The injunction against enforcement proceedings is issued in advance by the judge following petition by the debtor, including the filing of the relevant documents required under the new criteria. These measures are therefore well suited to facilitate the conclusion of the restructuring agreements, and serve to relieve the debtor company from aggressive creditors acting outside the agreement for the period necessary to conclude restructuring negotiations.

New provisions introduced in article 182-bis of the Italian Bankruptcy Law

The second paragraph of article 48 of the Law Decree adds three new paragraphs to article 182-bis of the Italian Bankruptcy Law.

Law Decree 78/2010, as amended by Law 122/2010, has introduced a new paragraph in Article 182-bis of the Italian bankruptcy law according to which the debtor may request a moratorium during the negotiations for an Art. 182- bis Arrangement.

The debtor must file the following documents with the competent Court:

  • the request for the moratorium;
  • an up to date economic and financial statement;
  • a detailed list and estimate of the value of the assets and a list of the creditors (including all relevant receivables owed to the company) and security interests,
  • a list of those having in rem or personal rights over assets of the debtor (owned or in use);
  • a proposal of the Art. 182-bis Arrangement;
  • a statement of the debtor confirming that negotiations with creditors representing at least 60 per cent. of its debts are on-going; and
  • a statement of an expert, meeting the requirements for the certification of the Art. 182-bis Arrangement, confirming that the restructuring proposal, if accepted by the relevant creditors, allows the regular payment of the creditors that are not negotiating the Art. 182-bis Arrangement or that have already confirmed that they are unable to enter into such negotiations.

The amendments introduced by the Law Decree in article 182-bis of the Italian Bankruptcy Law allows the entrepreneur to benefit from the prohibition of interim and foreclosure proceedings before the execution of the restructuring agreement. Such benefit may be particularly useful where the relationship with financial or commercial counterparties is particularly strained due to the financial distress of the company.


GELEX has a significant experience in insolvency matters, including pre-insolvency reorganizations, bankruptcy proceedings, insolvency proceedings of large insolvent companies (including either liquidation or reorganization proceedings) settlements and assignments of assets to creditors and/or third parties. Our Attorneys assist clients in connection with all insolvency aspects of banking, financial and commercial transactions. Our team of insolvency practitioners is supported by a wider team of Lawyers from across the Firm, especially of the litigation, finance and banking and the labour law departments.


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