introduced multiple changes to the original insolvency law (legge fallimentare of available at mapbookstosraso.tk English translation of the Nuova legge fallimentare, the new Italian bankruptcy law. The re- forms have brought about a modern, efficient and effective system. do not deal specifically with international aspects of insolvency proceedings, apart from the rule set by art. legge fallimentare, which is not frequently used .
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Jun 14, fileupload/pdf (discussing the liquidation of a bankruptcy estate); Legge .. pursuant to Article ); Legge Fallimentare—Testo a Fronte. B. Uffici d'esecuzione e uffici dei fallimenti. 1. Organizzazione. 1 In ogni circondario d'esecuzione è istituito un ufficio d'esecuzione diretto da un ufficiale. PDF | On Jan 1, , Francesco Capalbo and others published La relazione comma 2 della Legge fallimentare come possibile strumento di tutela anche .
Debt Restructuring Agreement (Accordi di ristrutturazione del debito)
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The non-debtor party to a contract then is not a creditor of the debtor but a creditor of the bankruptcy estate.
Time Limit No time limit is imposed on the bankruptcy trustee to decide rejection of an executory contract. However, it is evident that the bankruptcy trustee can reject executory contracts before the confirmation of the reorganization plan, as it has to be approved by the bankruptcy court previous hearing of the non-debtor party, as it is to be explained below.
In this model, time limits for the trustee to dispose of executory contracts are somewhat irrelevant as all executory contracts are automatically assumed. Specifically, both the bankruptcy estate and the non-debtor party have to continue performing the contract in its original terms as long as the bankruptcy trustee does not reject the contract.
Moreover, if the contract is breached by the bankruptcy estate, the claim for damages is granted an administrative priority, which ensures that the non-debtor party is compensated in full.
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According to the Spanish Insolvency Act, once the bankruptcy trustee request rejection of an executory contract, the bankruptcy court summons the bankruptcy trustee, the debtor, and the non-debtor party for a hearing. In such a hearing, the bankruptcy court mediates between the parties. If the bankruptcy trustee and the non-debtor party do not reach agreement on the rejection of the contract, the conflict is solved in a collateral proceeding.
The treatment of executory contracts and its effects in efficiency terms has been examined by American scholars in previous studies. The part argues that the regime adopted by the American and German models is undesirable as it facilities the externalization of costs by the bankruptcy estate to reject executory contracts, creating inefficient incentives for the bankruptcy trustee ex post as well as for the debtor and its creditors ex ante.
It also argues that the Spanish model, which adopts a regime that forces the bankruptcy estate to internalize the costs of rejection, creates the most desirable results both ex post and ex ante.
Finally, this part argues that because the rules on the treatment of executory contracts adopted by the Spanish model create the most desirable incentives for the bankruptcy trustee, this model is superior to the American and German models. Ex post Efficiency to Reject Assumption or rejection of executory contracts is part of the ordinary decisions that the bankruptcy trustee has to make in the administration of a bankruptcy estate.
In spite of these judicial limitations, the bankruptcy trustee is the one who has the initiative to assume or reject contracts.
The Possibility of Inefficient Rejection This part intends to establish if, from an efficiency perspective, there is a regime for the treatment of the damages claim for rejection likely to create the best incentives for the bankruptcy trustee to make decisions on assumption or rejection of executory contracts that result in an increase in the value available to all the parties affected rather tan exclusively to the bankruptcy estate.
The bankruptcy trustee chooses assumption or rejection of an executory contract depending on whether the contract is valuable or burdensome to the bankruptcy estate, which in turn is determined by the value of the contract and cost of performance to the bankruptcy estate.
However, as explained by Jesse Fried, from an efficiency perspective it is desirable that assumption or rejection of executory contracts is decided on whether a contract increases total value the value to both the bankruptcy estate and the non-debtor party. When two parties enter into a contract, some value is created so that both the promisor and the promisee are better off. Due to this value it is desirable to make a promise enforceable and to provide the promisor with remedies to ensure the enforcement of the promise.
The most common remedy available in contract law to the promisee is damages compensation. Damages compensation consists in forcing the promisor to pay an amount of money to the promisee equal to the loss the promisor suffers as a result of breach of the contract or equal to the gain the promisee would have realized on performance of the contract.
This doctrine is known as the theory of the efficient breach. This conception considers that it is desirable to treat the damages claim for rejection as a general unsecured claim because it eases the rejection of those contracts that are burdensome to the bankruptcy estate.
To be clear, it is necessary to enable the trustee to perform contracts that are beneficial for the estate and unburden the bankruptcy estate from unfavorable contracts that pose an obstacle to the maximization of the bankruptcy estate value. Consequently, as any prepetition claim, the damages claim has to share pro rata with all other unsecured claims in the distribution of the assets; otherwise, the non-debtor party to an executory contract would be treated differently from all the other general unsecured creditors.
Executory contracts are burdensome to the bankruptcy estate when the cost of performance is larger than the value of the contract to the bankruptcy estate; likewise, performance is wasteful when the cost of performance to the bankruptcy estate is greater than the value of the contract to the non-debtor party. In other words, if the trustee decides to assume the contract, the loss from performance to the bankruptcy estate is greater than the gain that the non-debtor party obtains.
A contract is value-creating when it increases the total value available to both the bankruptcy estate and the non-debtor party; that is to say, when the cost of performance to the bankruptcy estate is less than the benefits the contract creates for the non-debtor party; to put it differently, the gain from rejection to the bankruptcy estate is less than the loss imposed on the non-debtor party if the contract is rejected; a contract is value-creating because performance increases the total value to both the bankruptcy estate and the non-debtor party.
Rejection of a value-creating contract then is inefficient because the value that performance of the contract would create for the benefit of both the bankruptcy estate and the non-debtor party is lost. When the damages claim for rejection is treated as an unsecured claim, the damages claim is paid on a pro rata basis, whereas the obligation arising from the assumed contract and any damages claims arising from post-assumption breach of such contract have to be paid in full.
The difference in the cost of performance and the costs of breach creates a bias towards rejection, even if the contract is value-creating. This rule ensures that the non-debtor party is compensated in full for the expected gains lost as a result of rejection of the contract.
The effects of this rule are similar to those of paying in full the damages for breach in contract law. Because the bankruptcy estate is forced to fully internalize the costs of rejection, the bankruptcy trustee has the efficient incentives to choose assumption of the executory contract when performance is value-creating and chose rejection of the executory contract when performance is value-wasting.
Treating damages claim for rejection as administrative expenses prevents the bankruptcy trustee from rejecting an executory contract when the loss imposed on the non-debtor party is greater than the benefit obtained be the bankruptcy estate because the bankruptcy estate is forced to internalize the costs of rejection to the non-debtor party.
Similarly, this rule creates efficient incentives for the bankruptcy trustee to reject when performance is wasteful, that is when the benefit to the non-debtor party is less than the cost of performance to the bankruptcy estate. Again, the reason is that the bankruptcy estate has to internalize in full the costs of rejection to the non-debtor party. This rule creates more certainty about the fate of the contract for the non-debtor party, because the bankruptcy estate is obliged to pay the non-debtor party in full in either case: assumption or rejection.
Objections As explained above, the Spanish model creates the most efficient incentives for the bankruptcy trustee ex post. However, this model may create other sort of problems, namely: a it violates the principle of equal treatment among creditors, and b it may hamper the rehabilitation of the debtor.
Fairness The main objection against granting the damages claim for rejection as the administrative priority is that it is contrary to the principle of equal treatment among creditors.
Legal scholars have acknowledged that forcing the bankruptcy estate to internalize in full the costs of rejection eliminates the distortions created by the ratable damages rule because it creates incentives for the bankruptcy trustee to choose rejection of the contract only when the cost of performance to the bankruptcy estate is greater than the benefit to the non-debtor party i. However, it has been argued that this measure is problematic because it is contrary to one of the main bankruptcy policies: equal treatment among creditors.
Since the administrative priority rule forces the bankruptcy estate to pay in full the damages claim for rejection rather than a proportionate amount according to the assets available in bankruptcy , it disregards the principle of equal treatment among creditors. However, this behavior makes creditors worse off as a group because only those who individually collect first from the debtor are paid in full, whereas the remaining creditors receive nothing.
Nevertheless, bargaining costs are prohibitively expensive for creditors to enter into such agreement because creditors are dispersed and have an interest to maximize their claims individually. Hence, bankruptcy law provides the rules that creditors would negotiate if they could enter into a contract to distribute equally the value o the debtor among them according to their non-bankruptcy entitlements and, if possible, seek the rehabilitation of the debtor It is argued that when the damages claim for rejection of an executory contract enjoys an administrative priority some value is transferred to the non-debtor party at the expense of all other unsecured creditors.
Unlike all other unsecured claims, a claim that enjoys an administrative priority is paid first all other unsecured creditors and as such is usually paid in full. From an economic perspective, this is explained in these terms: this rule creates inefficient incentives on the bankruptcy trustee to obtain some benefit for the bankruptcy estate at the expense of the non-debtor, not to say that it creates other inefficiencies besides bankruptcy; this is the reason why bankruptcy law grants a priority position to certain types of claims.
The justification is that tort creditors become creditors of the debtor involuntarily. Moreover, even though the debtor can be forced to take insurance against tort damages, the debtor has incentives to undersecure. Thus, bankruptcy law intends to deter such behavior by granting tort claims an administrative priority s that the debtor internalizes the cost of its activities.
Although equal treatment among creditors is one of the pillars of bankruptcy law, an exception to this principle should be valid on the grounds of efficiency, because in the end the purpose is to align the goals pursued by bankruptcy law with the social of maximization of total value. It is important to notice that fairness concerns could be mitigated with a procedural solution as it is the case of the Spanish model.
The Spanish Insolvency Act mandates that all executory contracts are deemed to be automatically assumed by the bankruptcy estate. By mandating automatic assumption of all contracts, all those parties to executory contracts become creditors of the bankruptcy estate these creditors are no more prepetition unsecured creditors of the debtor ; as a consequence, the non-debtor party is not anymore a prepetition unsecured creditor of the debtor but a post-petition creditor of the bankruptcy estate.
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Rehabilitation The second objection to a regime for the treatment of the damages claim for rejection that adopts the administrative priority rule is that it hampers reorganization. The traditional explanation of the rules on the treatment of executory contracts is that the duty of the bankruptcy trustee is the maximization of the bankruptcy estate.
When a firm enters bankruptcy, it is common that some of the contracts remain unperformed and some of these contracts impose a burden to the bankruptcy estate. Because one of the underlying goals in bankruptcy is reorganization of the debtor, it is desirable to allow the bankruptcy trustee to reject those contracts that are unfavorable to the bankruptcy state.
It is regarded as necessary to enable the bankruptcy estate to unburden itself from unfavorable contracts in order to maximize the bankruptcy estate value; once the bankruptcy estate is released from those contracts, the bankruptcy trustee can seek to enter into contracts with third parties in more favorable terms for the bankruptcy estate, and even if the bankruptcy estate does not enter in new contracts with third parties, rejecting burdensome contracts benefits the bankruptcy estate as it releases the bankruptcy estate from loosing some value.
In this sense, reducing the costs of rejection is justified on the basis that it facilitates rejection of burdensome contracts, which in turn facilitates the maximization of the bankruptcy estate value. Conversely, a regime that forces the bankruptcy estate to fully internalize the costs of rejection is regarded as undesirable because it makes it more difficult for the bankruptcy estate to unburden itself from unfavorable contracts due to the asset constraints in bankruptcy.
Notwithstanding, the administrative priority granted to the damages claim for rejection is unlikely to affect the rehabilitation of the debtor, because payment damages claims can be deferred until the reorganization plan is confirmed. In this sense, although the amount of the damages claim for rejection of executory contracts are larger under the expectation damages rule, such claims are paid out at the end of proceeding. Conclusions This article has examined the main approaches to the treatment of executory contracts used around the world for the treatment of executory contracts in bankruptcy focusing on the ability and incentives of the bankruptcy trustee to reject executory contracts.
After classifying such regimes into three models, this article has described the rules on the treatment of executory contracts under each model. Based on previous studies on executory contracts from an economic perspective, this article has analyzed the incentives that these regimes create ex post for the bankruptcy trustee. This article has demonstrated that the American model, which adopts a regime in which the damages claim for rejection of executory contracts is treated as a general unsecured claim, creates inefficient incentives for the bankruptcy trustee to reject value-creating contracts.
As for the German model, this article has shown that it adopts a regime in which the damages claim for rejection is treated as a general unsecured claim, produces the same inefficiencies as those generated by the American model. Last but not least, this article has found that the Spanish model is likely to create the most efficient incentives ex ante and ex post for the debtor and the non-debtor party to make decisions on performance, investment and filing for bankruptcy.
Unlike the American and German models, the Spanish model adopts a regime in which the damages claim for rejection enjoys administrative priority which forces the bankruptcy estate to internalize the costs of rejection. This article has also analyzed several objections to the Spanish model, namely that it is contrary to the principle of equal treatment among creditors and that it hampers rehabilitation of the debtor. This study has concluded that these objections are misplaced and that an exception to the principle of equal treatment should be allowed.
Based on the results of this study, this article argues that the Spanish model is superior to the American and German model and advocates for its consideration as a model for other bankruptcy systems to improve the treatment of executory contracts.
L.F. (in this context)
Rasmussen ed. Toronto L. Weiss eds.Amended by: I crediti risultanti dal registro fondiario, anche se non sono insinuati, sono ammessi, con gli interessi in corso, al passivo del fallimento. Campo d'applicazione Art.
A DRM capable reader equipment is required. Altalex ; 26 ott Principio dell'offerta sufficiente Art. The treatment of executory contracts and its effects in efficiency terms has been examined by American scholars in previous studies. Tuttavia, non si dovrebbero considerare disciplinate dalle norme in materia di insolvenza le procedure che sono disciplinate dal diritto societario generale non destinato esclusivamente alle situazioni di insolvenza.
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