Osservatorio Europa

Transnational insolvency law in italian-romanian experience

Daniele Vattermoli, Professore ordinario di Diritto commerciale nell’Università La Sapienza di Roma
Antonino La Malfa, Presidente Sezione Procedure Concorsuali del Tribunale di Roma
Claudio Tedeschi, Giudice presso il Tribunale di Roma, Sezione Procedure concorsuali
Angela Marinangeli, Specialista giuridico presso Presidenza del Consiglio
Nicoleta Mirela Nastasie, Insolvency practitioner

18 Settembre 2023

Il lavoro, dopo aver analizzato il fenomeno della c.d. insolvenza transfrontaliera e l’importanza della cooperazione giudiziaria in questo settore, si sofferma sul caso che ha coinvolto un’impresa in crisi che operava negli ordinamenti italiano e rumeno.

The paper, after analyzing the so-called “multinational insolvency law” and the importance of judicial cooperation in that regime, illustrates case-laws that have concerned companies in crisis operated in the Italian and Romanian legal systems.
Riproduzione riservata
1 . Private international law matters related to the insolvency of multinational enterprises and the importance of its regulation
The expression "transnational insolvency law" (or, also, "multinational insolvency system") can be used to define the set of rules and principles - contained in hard and soft law texts and in collections of international best practices - that have as their object the insolvency of debtors characterized by an organizational structure and/or a distribution of assets that transcends the geographical boundaries of a single legal system [1].
This is a body of rules that in recent years, due to the progressive globalization of the market and the increasing internationalization of companies, has seen a significant expansion and significant changes, attracting the attention not only of economic operators, but also of the academic community [2] and national legislators [3], now aware, with a few painful exceptions [4], of the importance that the effective and efficient management of the crisis of multinational companies has for the economic development of a nation [5].
In order to understand the problems generated by the insolvency of multinational companies, it is necessary to start from the cardinal principles, unanimously shared, that govern insolvency procedures; that is, the principles of generality and universality.
According to the principle of generality, the effects of the opening of the collective procedure extend to all the creditors of the debtor who is subject to it. From that moment onwards, the creditors will no longer be able to take executive action on the debtor's assets (so-called automatic stay); they will also not be able to create new causes of preference on these assets; finally, they will be satisfied according to the rank of the claim they have and only after they have been recognized as such (as creditors, that is) according to the rules of ascertaining liabilities. The opening of the procedure, in  other words, determines the constitution of the substantial competition and the formal competition among the creditors of the common debtor. And this, independently of the nationality of the creditor, whether he is a citizen of the State in which the procedure has been opened or, on the contrary, a foreigner.
According to the principle of universality, the opening of collective proceedings determines the creation of a lien on the entire assets of the debtor who is subjected to them - with the sole exception of assets that cannot be seized - which from that moment on must be allocated to the satisfaction of creditors. And this - in perfect symmetry, on this point, with what has been observed with respect to the principle of generality - regardless of the geographical location of the debtor's assets.
Now, it is quite evident how the simultaneous application of the principles of universality and generality briefly mentioned, by two or more legal systems, inevitably determines a sort of short- circuit, which cannot be resolved in the absence of an ad hoc discipline. Since the debtor's assets are, for the sake of argument, unique, the attraction of the same towards more than one centre of gravity, represented by the insolvency proceedings opened in various countries, leads to the result of sterilizing the effects of the principle of universality and breaking the assets into as many parts as there are proceedings opened against the same debtor [6].
This explains the importance that an ad hoc discipline of cross-border insolvency is assuming and will increasingly assume in modern business law.
2 . The purposes of transnational insolvency law
What are the priority objectives that a modern and economically efficient system of governance of cross-border insolvency should pursue is widely known and unanimously shared [7], namely: the predictability and certainty of the rules applicable to those (debtor, creditors, contractual counterparties, etc.) who, directly or indirectly, are involved in the crisis [8]; the maximization of the value of the assets, through liquidation or the reorganization of the business units [9]; the minimization of expenses and the duration of the collective procedure(s) [10]; the avoidance of conflicts between legal systems [11]; the equal treatment of all creditors of the insolvent company, regardless of their nationality [12].
Among those mentioned, the objectives of maximizing the value of the debtor's assets and the reduction of both costs and time of the procedure, do not require any explanation here, as they are in fact typical objectives of any system of settlement or management of the crisis of enterprises, regardless of their size, cross-border or domestic [13].
The objective of predictability and certainty of the rules applicable is particularly relevant and would seem to be at the basis of the efforts made so far in the international sphere in this delicate matter [14], given the heavy negative repercussions that uncertainty determines with respect to both the credit market [15] and, in a broader perspective, the economic development of nations [16].
It has even been argued that "The International bankruptcy system can be a success only if it is predictable" [17]. And it is precisely from the point of view of predictability and certainty of the legal situations involved in bankruptcy that the "territorialist grafts" in the texts that make up the current international bankruptcy law can be explained, first and foremost the possibility of opening local procedures in States other than the home country.
3 . The theoretical models for the management of the transnational insolvency
The search for a solution to the problems generated by transnational insolvency has led the doctrine to develop several theoretical models on which to base the most efficient and effective multinational insolvency system: models that over time have become increasingly sophisticated, undergoing, as will be seen, a process of "hybridization", to best compose the different interests involved in the crisis of the cross-border enterprise.
A. Originally, the issue was set up by juxtaposing the "pure" models of territoriality and universality and, therefore, the advantages and disadvantages that the adoption of one or the other model would have determined for the single national system.
a) The "pure universalism" model contemplates a single collective procedure governed by a single applicable law, that of the debtor's State of origin, in which all the debtor's assets, regardless of their location, are administered and pooled; the foreign judicial authorities must recognize and enforce automatically the judgment opening the procedure (with the sole limit of respect for domestic public order) and all creditors, domestic and foreign, participate in the distribution of assets, without any distinction based on their different nationalities [18].
b) The "pure territorialism" model, on the contrary, contemplates the opening of collective proceedings in each State with respect to which the debtor presents a certain connecting factor. These connecting factors are established by the internal rules of the relevant legal systems. They can relate to both the structure of the debtor's assets; for example, the presence in the territory of the State other than the State of origin of a secondary office or a branch or simple assets and to the concrete activity carried out by the debtor, such as the existence of transactions falling within the jurisdiction of the foreign State. Moreover, each procedure is governed by the law of the  opening State and  applies to  the  assets and  creditors located or  resident there, thus "shattering" the assets and liabilities into as many sub-sets as there are procedures opened against the same debtor. Finally, no form of cooperation between authorities and/or between bodies of the procedures is envisaged, which thus remain unrelated and independent of each other [19].
c) From a practical point of view, there is no doubt that the latter model is the one most easily adopted by national legislators: since it does not provide for any form of cooperation or, more simply, contamination between the various proceedings opened against the same debtor. It is clear, indeed, that its use is completely disconnected from a hypothetical system of international insolvency law and from the - albeit minimal - process of procedural coordination that the same would impose [20]. Territorialism (or "territoriality"), not by chance, was the one originally followed by almost all of the most evolved legal systems [21], still today being very much adopted [22], as shown, among others, by the Italian experience.
On the other hand, however, the same model presents serious drawbacks from the point of view of efficient crisis management, considering that its adoption:
(i) generates a multiplication of costs due to the opening of multiple procedures;
(ii) makes it difficult to realize a block sale, at the going concern value, of the debtor's assets; (iii) hinders the attempt of recovery in the strict sense of the multinational company in crisis [23]. Finally, the existence of multiple uncoordinated insolvency procedures makes it almost certain that creditors will be treated unequally, since it is more than likely that strong and organized creditors will be able to obtain satisfaction of their claims by drawing on multiple procedures, unlike the others [24].
Although the advantages, in economic terms, associated with the adoption of the opposite model of pure universalism are well known and evident [25], the latter has not met with the success that could be expected [26]. Even universalism (or "universality"), indeed, presents drawbacks of no small importance.
The adoption of this model requires, in the first place, the creation of a system of supranational rules of private international law relating to insolvency law, to which all nations should tend to adhere, otherwise the risk of opportunistic behavior by some states to the detriment of others is a real risk. This model, moreover, imposes a substantial reduction of national sovereignty in terms of both the distribution of jurisdiction and the regulation of the debtor's patrimonial responsibility (we will return to this point immediately below), as it depends upon the immediate extraterritorial effectiveness of the foreign lex concursus [27]. Finally, it presupposes the identification of the State of origin - or, if you like, the center of main interests - of the debtor, which in reality may not be easy to determine, especially in the case of an insolvent multinational group [28].
Among all those listed, there is no doubt, however, that the main reason for the lack of global success of the universalism model largely rests on the diversity of the systems of credit graduation that characterize each individual legal system [29].
d) Given that the two “pure” models described above are of limited practical use, they were abandoned for quite a while now, as being of limited practical benefit. [30] More flexible models [31], like such as "hybrid models" are now preferred, and these merge the elements of both universality and territorialism.
The models – which can be defined as “compromise models” – that have received the greatest consensus [32] are those known as "modified universalism" [33] and "cooperative territorialism" [34], which have as a common denominator - albeit with different nuances, accents, and intensity - the cooperation between the courts and/or between the insolvency practitioners of open proceedings, in different jurisdictions, against the insolvent debtor.
d1.  The  first  model  mentioned  above,  while  adopting  the  fundamental  principles  of universalism, allows the judicial authorities to "evaluate the fairness of the home-country procedures and to protect the interests of local creditors" [35].
It hinges on the main procedure/non-main procedure dichotomy: a dichotomy which, in turn, and as will be better observed later, revolves around the identification of the center of main interest of the debtor [36].
The protection of local interests takes place through the opening of non-main proceedings -proceedings opened in a system different from that of the debtor's origin - which, although "subordinate" to the main proceedings, have the effect of preventing the insolvency practitioner of the main proceedings from taking over and liquidating the assets located in the competent territory and distributing the proceeds of the sale according to the graduation system of the State in which the COMI is located [37].
In addition, unlike the original model, "modified" universalism also includes, for the purposes of identifying the applicable law, other connecting criteria (e.g.: lex contractus; lex rei sitae; etc.) that for specific relationships derogate from that of the lex concursus [38].
Even this model, however, is not exempt from some criticism, deriving essentially from its "hybrid" nature, which would not allow the system based on it to obtain the advantages that would derive from the adoption of one of the two models previously defined as “pure” [39].
d2. The second model, on the other hand, starts from the pure principle of territoriality, which, however, is tempered by the inclusion of rules that allow cooperation between the different authorities of the States involved in the insolvency [40].
In this model, there are no main and secondary procedures, but, at most, coordinated parallel procedures, with the consequence that no power is recognized to the foreign proceeding authorities, even if the latter is to be considered "objectively" as main proceedings (because it is open in the place where there is the legal and operational headquarters of the company). Moreover, cooperation is only possible, since the judicial authority and the representative of the domestic procedure must assess whether or not it is economically efficient to "coordinate" with foreign counterparts, in order to better realize local interests [41].
It can be said that "universalism seeks cooperation through ex ante commitments whereas cooperative territorialism seeks cooperation on an ex post basis" [42]. If this is true, it is evident that it is particularly difficult to express a summary evaluation of the efficiency of the model, since in real life, cooperation could be denied, even if, hypothetically speaking, there are the conditions present that would make it convenient from the economic point of view [43].
4 . International insolvency law, between hard and soft law sources: Regulation (EU) 2015/848
A. The current transnational insolvency law can be classified by distinguishing, on the basis of  the geographical extension of their field of application, the sources with strict internationality from those with a regional character. The first category includes the texts developed within UNCITRAL (the Model Law on Cross-Border Insolvency [44], the Legislative Guide on Insolvency Law [45] and the recent Model Law on Enterprise Group Insolvency [46]), the World Bank [47], the International Bar Association and the International Insolvency Institute [48]; the second category includes, instead, the Regulation EU n. 848/2015 (recast version of the original Regulation n. 1346/2000) and the Principles of Cooperation Among the NAFTA Countries developed by the American Law Institute (ALI Principles) [49].
Sources can then be classified on the basis of the binding or not-binding nature of the rules they give rise to.
The first category includes - in addition, of course, to the "internal" laws governing the international-private aspects of insolvency, which in many cases are inspired by the so-called “droit mou” [50] - only those concerning the European Union (the aforementioned Regulation no. 848/2015).
B. a) The Regulation no. 848/2015 applies to insolvency proceedings, regardless of whether they are reorganisation or liquidation proceedings, whether negotiated or compulsory, which involve the total or partial divestiture of the debtor or the control of the management of the assets by a judge: it also applies to proceedings that simply provide for a temporary suspension of executive actions to allow negotiations between creditors and the debtor, provided that measures to protect the former are contemplated.
On the other hand, the Regulation does not apply to insolvency proceedings relating to banking, insurance, securities brokerage and collective investment companies, for which ad hoc rules are set out, in consideration of the interests involved.
Also in this recast version of the Regulation, in fact, transnational insolvency with a European dimension is regulated by adopting the theoretical model of limited universality, foreseeing a main procedure, opened in the place where the company has the COMI and whose effects are immediately produced throughout the Union, by virtue of the automatic recognition of the opening judgement (with the only limitation of respect for public order), the applicable law being - except for specific matters, for which other connecting criteria are valid (articles 8-18) - the lex concursus; and secondary (or territorial) proceedings, which, although "subordinate" to the main proceedings, have the effect of submitting the debtor's assets in the State of the opening of the secondary proceedings to the law of the latter.
This "subordination" is essentially, though not exclusively, translated into the power of the administrator of the main insolvency proceedings, on the one hand, to request the suspension, for a limited period of time, of the operations for the realization of the assets in the secondary proceedings, when this measure is functional to the best satisfaction of the creditors both of the main proceedings and of the secondary proceedings (art. 46); and, on the other hand, to propose a restructuring plan or a composition in the secondary proceedings, in accordance with the law applicable to the latter proceedings (art. 47).
b) However, compared to the 2000 version, the 2015 version also presents several innovations [51], some of which are extremely important, such as the one relating to the introduction of an ad hoc discipline of the European insolvent group and the one aimed at better clarifying the concept - which also in the new structure represents a key element of the system - of COMI, defined by the doctrine as the punctum dolens of the previous Regulation [52].
With reference to the COMI, it is established (art. 3, par. 1), as a general rule, that "The centre of the main interests is the place where the debtor exercises the management of his interests in a habitual manner and recognizable by third parties", thus following, at least in its essential lines, Recital no. 13 of EC Regulation no. 1346/2000.
In order to facilitate identification of the COMI, the instrument of the presumption, juris tantum, that it coincides with the registered office of the company, as was already the case under Regulation no. 1346/2000; or, and herein lies the new feature, with the principal place of business of natural persons carrying out a business or independent professional activity; or, finally, with the habitual residence of other natural persons [53].
These presumptions, however, only operate if the registered office, main place of business or habitual residence have not been moved to another member state within the period of three (for the first two categories of debtors) or six (for the third category) months prior to the request for the opening of insolvency proceedings. In this case, the intention of the Community legislator to avoid forum shopping is clear [54].
The approach taken by Regulation no. 848/2015 with reference to the identification of the COMI therefore seems to retrace the decisum of the pioneering Eurofood case, in which, in fact, the Court of Justice stressed that in order to overcome the presumption of coincidence of the COMI with the statutory seat of the debtor it is necessary to provide evidence of the existence of "objective elements verifiable by third parties" (in particular, creditors), which demonstrate - according to a global and overall assessment, which takes account of all the factual elements - that the management of the debtor's interests has in fact taken place in a place other than that of incorporation [55].
The special exception to the presumption, aimed at neutralizing "opportunistic" shifts of the registered office in proximity to the opening of the insolvency proceedings, in accepting the indications coming from a part of the doctrine, distances itself from the orientation taken by the Court in the Interedil case, in which the judges anchored the presumption to the registered office resulting at the time of the presentation of the application for the opening of the proceedings.
c) Finally, another important innovation is that contained in art. 36 of the Regulation, which allows the liquidator in main insolvency proceedings to make a legally binding commitment towards a group of creditors which, if accepted by the latter, has the result of paralysing the opening of secondary proceedings, in fact limiting the jurisdiction of a member state with an act of private autonomy.
What is known as "synthetic secondary proceeding" thus represents a further element of the so-called negotiation law of the crisis, which is increasingly occupying space in the European insolvency or quasi-insolvency system, as the use of insolvency protocols shows (infra, § 5).
Through this "commitment" the opening of a secondary procedure is therefore avoided, with the obstacles that it could represent for the efficient "unitary" management of the debtor's assets, while protecting local creditors, who are granted the same treatment they would have received if that procedure had been opened.
5 . International judicial cooperation in cross-border insolvency. The emerging importance of the “Insolvency Protocols”
There is no doubt that the pivot on which the entire multinational insolvency system revolves is international cooperation, which is invoked in all texts - both hard and soft law - on crossborder insolvency [56].
Cooperation between authorities and/or technical bodies in national proceedings against a single debtor or company which is part of the same group can be achieved through different instruments and can take any form.
It may consist, for example, in the possibility of communication and exchange of information between the liquidators and between the judicial authorities of the various proceedings involved [57]; in the setting up of simultaneous hearings [58]; in the appointment of legal representatives to act as intermediaries between the bodies of the proceedings in order to eliminate language barriers [59]; in the setting up of mutual obligations of conduct between the authorities and/or representatives of the proceedings as regards the administration, in the broad sense, of the assets and the supervision of the economic activity of the company in crisis [60]; in the authorization by the judicial authorities to the technical bodies of the procedures to agree on the solution of certain issues relating to the development of the procedures (such as, for example, and in the case of an insolvent multinational group, that relating to the analysis of the documentation relating to the implementation of the directives of the holding company, with a view to a possible liability action against the corporate representatives of the parent company and/or subsidiaries), as well as to appoint a receiver to play the role of "coordinator" of the others.
This last possibility is particularly important when the insolvent group has a large number of members, facilitating the formulation and implementation of common strategies. It is not necessarily the case, however, that the pivot role is played by the insolvency administrator of the proceedings opened against the parent company: it is quite possible, in fact, that the "main" proceedings - in terms of assets, number of creditors and economic relevance of the contractual relations in progress - are those opened against an "operational" subsidiary [61].
Cooperation can also take the form of coordinating the administration (or supervision) of the overall economic activity of the debtor company, in the event that the activity continues despite the opening of insolvency proceedings, in particular with regard to financing following the initiation of the competition [62]; the preservation, use and disposal of assets; the exercise of revocation actions, which, albeit indirectly, could influence the actual conduct of the business activity. Coordination could also involve entire phases of the procedures, such as the ascertainment of liabilities and the distribution of assets (phases which, in the case of multinational groups, could be particularly delicate, with reference, precisely, to intra-group transactions); and could also concern the proposal and negotiation of "concerted" reorganisation plans [63].
Finally, cooperation can go so far as to allow the judicial authority to adopt a "coordinated" act (with the foreign authorities) for the appointment of the representative of the insolvency proceedings which is the same for all the proceedings opened against the debtor, on condition, of course, that this person possesses the requisites required by the law of the States in which he is called upon to carry out his task [64].
This is a form, albeit partial, of "procedural consolidation", in theory capable of considerably increasing the efficiency of the management of the insolvent company (single or group),
eliminating, in fact, the costs, delays and difficulties that cooperation between a plurality of bodies in any case entails and facilitating the assessment of claims and, above all, the disposal of the debtor's assets as a single unit. On the other hand, however, the appointment of a single person responsible for administering the assets of various companies in the insolvent group (or the assets of the single legal entity distributed among several countries) presents several difficulties. Indeed: on the one hand, it is not so obvious that collective proceedings will be opened simultaneously in the various jurisdictions; on the other hand, and above all, it is extremely complicated for the courts concerned to coordinate their activities even before the opening of collective proceedings.
In order to achieve the desired result, the court that first declares insolvency should therefore appoint as the body of the proceedings a person who is qualified to play the same role in proceedings to be opened abroad; whereas, in order to be able to appoint the same person, foreign courts that intervene subsequently should be aware of the fact that the debtor belongs to a multinational group and that one of its components has already been subject to collective proceedings (or that the same debtor has already been subject to proceedings in another State).
In addition, in the case of multinational groups, the unitary management of assets formally belonging to distinct parties can, in this specific case, generate conflicts of interest. It is not  uncommon, in fact, for the interest of a specific procedure not to coincide, or even to be in open conflict, with that of the creditors of another procedure: it is sufficient to think, for example, of any liability actions brought by the administrator of the bankruptcy of the subsidiary against the parent company, which is also insolvent; or of the avoidance action of intercompany acts; or, more generally, of any action of the administrator which may determine a shift of "value" from one procedure to another.
Up to this point, we have discussed the importance and the possible forms in which cooperation between judicial authorities or between representatives of insolvency proceedings (or between the former and the latter) can actually take place. 
However, there is a tool, increasingly used in international practice, which, if adopted in the domestic legal system, renders superfluous the transposition, through specific norms, of the provisions or recommendations which, in the texts of hard and soft law respectively, contemplate the individual measures of cooperation. 
A. The reference is to the so-called agreement on cross-border insolvency (or Insolvency Protocols) [65], through which the parties undertake to cooperate with each other, with the aim of coordinating the conduct of collective proceedings opened against the same debtor or companies in the same group, in different jurisdictions. An instrument whose importance, as well as on a practical level, must also be appreciated on a systematic level. In fact, it can be affirmed that the current international insolvency law was preceded [66] and, in some way, guided in its evolution by the protocols - born, at least in their modern version [67], in the early 90s of the last century (Maxwell case) [68]- which, with the passage of time, have given rise to those best practices that are now translated into many texts of uniform law [69].
And so it is that the protocols, in principle used essentially in common law systems, have gradually conquered the field even in those of civil law [70], thanks to the explicit mention of them in the soft law texts issued on the subject by the Uncitral [71] and, above all, the space dedicated to them more recently by the EU Regulation on insolvency proceedings (in the recast version of 2015), which makes it likely that their use will increase considerably in the near future [72].
In Regulation no. 848/2015, in particular, the protocols are addressed - in addition to Recital no. 49 - in articles 41, paragraph 1 and 42, paragraph 3, letter e) as regards the coordination of proceedings opened against the single debtor legal entity; and articles 56, par. 1 and 57, par. 3, lett. e) as regards multinational groups. In both cases the use of these agreements is contemplated as a means of cooperation between the administrators of insolvency proceedings, for the judicial authorities being envisaged merely "coordination of the approval of the protocols, if necessary".
B. a) First of all, it should be stated that the use of the protocols is based on the principle of comity and that, in order for cooperation through the protocols to take place, it is necessary (and  sufficient) that the domestic law allows the representative of the insolvency proceedings (or other interested party, identified by the law itself) to enter into a cross-border insolvency agreement [73].
On the other hand, it is not necessary (although desirable) that the law allows or requires the judicial authority to approve or enforce the agreement itself [74]. 
The protocols - but the discourse can be extended, in reality, to all the instruments of cooperation - are then applied when it is economically convenient to proceed with the coordination of the procedures opened against the individual components, that is, when there is goodwill to be preserved.
b) From the point of view of the subjective structure of the agreement, the protocols can take place between the judicial authorities [75]; between those who are in charge of managing (or supervising the management of) the debtor's assets; between those who represent, within the procedures, the interests of creditors; and, in the hypothesis of debtor in possession, between the directors of the companies of the group in crisis [76].
c) As far as the subject matter is concerned, it must be said that the protocols - whose content, although the objective of "maximizing efficiency and minimizing disputes among all parties" [77] is constant, varies depending on the needs to be met in the specific case [78] - can be modelled so as to provide for the use of one or more of the cooperation tools mentioned above. 
The negotiation nature of these instruments - often articulated in the procedural sequence: framework agreement/executive agreements - excludes the possibility that the relative clauses may be in contrast with the provisions of national law, especially as regards the duties and responsibilities of the person in charge of managing the insolvent assets, as well as the procedural guarantees provided to the parties concerned [79]. 
Moreover, they cannot limit the independence and authority of insolvency courts, even if they are formally authorized and/or adopted by them. 
Having said this, it must be said that the agreements could have as their object the identification of the rules of conflict to be used for the determination of the law applicable to certain particular issues; the choice of the form and content of the communications between the parties and of the notifications to the parties concerned; the procedure to be followed for the verification of claims arising from intra-group transactions; the treatment of pending litigation between group companies; the division of tasks (and responsibilities), between the parties to the agreement, on matters affecting the various procedures involved (such as transactions relating to the sale of the assets of the multinational company) [80]. 
The protocols can also establish the rules to be followed and the mechanisms to be used for coordinating the reorganization plans already presented or to be presented. On the contrary, it can justifiably be said that the restructuring of a cross-border company in crisis, especially when it is structured as a group, would be very difficult to achieve without an insolvency agreement between the representatives of the various procedures opened in the various legal systems involved. In fact, it would be practically impossible to formulate a single plan or several connected and interfering plans, or to "align" the timing of the presentation of proposals and their vote, without a specific agreement between the heads of the different procedures; just as it would be impossible to proceed with indirect restructuring, that is, through the aggregate sale of the assets of the debtor company, in the absence of similar agreements [81].
6 . Case studies in the Italian-Romanian experience. Astaldi and Blue Air Aviation
A. Blue Air Aviation Case
Problems of a cross-border nature inherent in the relationships between proceedings opened and/or promoted in different EU states that have been settled and resolved in application of the provisions of EU Regulation No. 848/2015 arose in the proceedings brought before the bankruptcy court of Rome at the request of 'Blue Air Aviation S.A.', hereinafter conventionally referred to as the 'proponent'.
a) This is an airline company with its main registered office in Romania and a secondary branch in Italy; having already filed with the Bucharest court an arrangement with creditors procedure, in its pendency it requested the opening of secondary insolvency proceedings and the admission to 'secondary Concordato Preventivo' pursuant to Article 3 paragraph 2 of EU Regulation 2015/848 at the court territorially competent with reference to the place where the secondary branch is located. More specifically, the court of Bucharest, following the relevant application registered on 30 June 2020, by decree issued on 6.07.2020 had declared open the procedure of arrangement with creditors on a going-concern basis, appointing 'provisional administrator in composition with creditors'.
Before the court having jurisdiction over the secondary seat, the petitioner requested access to the arrangement procedure in the so-called “reservation form” (Concordato Preventivo con Riserva), governed by Article 161, paragraph 6, of the Italian Bankruptcy Law, which, in brief, provides for the granting of a time limit to allow the drafting of the application for the arrangement and the preparation of all the acts inherent thereto, determining, in its constancy, ex lege, the so-called automatic stay, i.e., primarily the blocking of enforcement and provisional actions and the subjection of the debtor company to limitations on its management activities (which, as far as extraordinary administration is concerned, presupposes authorisation by the court) and to periodic reporting obligations towards the judicial authority. A first aspect addressed by the court concerned the identification of the conditions under which, according to the rules set out in EU Regulation 2015/848, secondary insolvency proceedings may be opened during the main insolvency proceedings already opened in another State and the compatibility of the so-called "preventive form" with the European regulation. In this regard, it has been observed that, according to the reference legal text:
- where the court of a Member State within the territory of which the debtor's main centre of interests is situated has opened insolvency proceedings, the courts of another Member State may open other insolvency proceedings against the same debtor only if the latter has set up its own branch within the territory of their jurisdiction and, in that case, such 'secondary' proceedings must be limited to the debtor's assets located there (Article 3);
- where the main insolvency proceedings presuppose the insolvency of the debtor and these proceedings have been recognised in the other member state, there, at the time of the opening of the secondary insolvency proceedings, where these also presuppose the insolvency, its occurrence may not be reviewed (Art. 34)
- the recognition in a member state of a judgment by which other insolvency proceedings have previously been opened in another member state is a consequence of its effectiveness in the opening state (Art. 19);
- these rules apply to the public insolvency proceedings listed in the relevant Annex A to the European Regulation, including those that are provisional or that may be opened on the mere possibility of insolvency in order to avoid the emergence or cessation of the debtor's activities (Art. 1);
- in the above-mentioned Annex A, with regard to Italy, express reference is made to the composition with creditors procedure (Concordato Preventivo), the positive regulation of which is currently contained in Royal Decree No 267 of 16 March 1942, the so-called “Legge Fallimentare”;
- according to the provisions of Article 38 of the Regulation, where the court of a member state receives a petition for the opening of secondary insolvency proceedings, it must immediately inform the administrator of the main proceedings before deciding to open such proceedings, in order to allow him to exercise the powers provided for by the aforementioned provision in conjunction with Article 36;
- with reference to the type of procedure of the composition with creditors, the Italian law (Article 163) establishes that the opening of the procedure follows the admission of the relevant proposal following the filing and evaluation of the relevant plan and the necessary accompanying documentation;
- in the event that a petition is filed pursuant to Article 161(6) of the bankruptcy law, the adoption of the consequent provisional measures relating to the opening of the proceedings and to the setting of the time limit for the formalisation and filing of the application for composition with creditors or of any other application aimed at resolving the crisis and the possible appointment of a judicial commissioner should have been deemed not to be an obstacle - but rather functional - to the compliance with the supranational rules, if only considering that their pronouncement, according to the typical discipline of reference, entails a direct supervision, by the commissioner or by the court and through the monthly reports that the proponent is required to submit, of the management activity carried out during the time necessary to safeguard the proponent's assets in order to protect the creditors;
- moreover, Article 38 of the Regulation provides that, where 'a temporary stay of individual enforcement actions has been granted in order to allow negotiations between the debtor and its creditors', the administrator of the insolvency proceedings may petition the court seized for the opening of secondary proceedings to suspend the proceedings for a period not exceeding three months where 'appropriate measures are put in place to protect the interests of local creditors';
- such provision of law could have been applied with reference to the reserved arrangement pursuant to Article 161(6) of the Bankruptcy Law considering that, pursuant to Article 168, the publication of the relevant petition in the Commercial Register would have entailed, until the approval of the arrangement, the suspension of executive and provisional actions and/or the prohibition to initiate them and, therefore, the immediate appointment of the Commissioner should have been deemed useful also for the exercise of such activities in order to safeguard the par condicio creditorum;
- therefore, having ascertained the presence in the district of jurisdiction of a branch office constituted by a dependency operating with profiles of full autonomy and, in accordance with Italian law, the capacity of the applicant company as a commercial entrepreneur, a necessary prerequisite for its subjection to insolvency proceedings, by its own decree the court set the deadline for the formalisation of the application for composition with creditors, appointed a judicial commissioner for the reservation phase and, in addition, ordered the administrator of the main insolvency proceedings to be informed pursuant to art. 38 of Regulation No. 848/2015, noting that, as provided for in its subsequent Article 43, cooperation between the courts and administrators involved in insolvency proceedings, main and secondary, can be carried out 'by any appropriate means' and, therefore, nothing precluded that this could be implemented with the participatory involvement of the same proposer to whom it entrusted the execution of the relevant fulfilments.
A further moment of verification of the relationship between EU supranational sources and domestic legislation and of the reciprocal aspects of incidence and interference arose at the time of the examination of the application for composition.
It must be premised that Article 162 of the bankruptcy law allows the court, upon detecting aspects in the petition that could lead to its inadmissibility, to notify the petitioner, setting a time limit for it to proceed with the relevant additions and corrections, as well as a subsequent hearing, to verify, in cross-examination also with the representative of the Public Prosecutor's Office, whether they are persistent or eliminated.
The court noted that the proponent, among the sources of assets from which the secondary procedure could have benefited to satisfy the creditors, had also provided for 'financial support from the parent company Blue Air Aviation S.A.' for a certain monetary amount, to be disbursed in various forms and ways; moreover, since in the context of the main composition procedure for holders of unsecured claims of less than EUR 5.000,00 and for 'passenger creditors' similarly placed had been provided for payment in full, in order to ensure equal treatment for the counterparts in the secondary dependency the plan had indicated, in addition to the 30% provided for class III of their allocation, the payment, by the 'parent company', of the difference in two different tranches until settlement in full. The court observed, as a premise, that, in the present case, two provisions of EU Regulation 848/2015 were relevant, both located in Chapter III which refers to 'secondary insolvency proceedings' and, in particular, Article 34, pursuant to which '[t]he effects of secondary insolvency proceedings shall be limited to the debtor's assets situated within the territory of the Member State in which the proceedings are opened' and the subsequent Article 45, pursuant to which 'any creditor may lodge his claim in the main insolvency proceedings and in any secondary insolvency proceedings'.
On the basis of those provisions, it had to be held that the secondary proceedings were aimed at resolving the business crisis that affected the same business subject that had initiated the primary proceedings in the court of the place of the main office and whose assets were therefore to be considered as a single unit in their destination to satisfy the claims of its creditors, without any distinction being made between those belonging to the main office and those belonging to the secondary office in terms of clear opposition and mutual insensitivity.
The secondary procedure would have concerned the assets located in the territory of the State where the secondary seat is situated (and the analytical enunciation of which is provided by Article 2(9) of Regulation No. 848/2015) and could have led to the possible preferential devolution of the proceeds of their liquidation to the satisfaction of the claims of those creditors who, according to local domestic law, could have had preferred claims, without, however, this being able to entail, in the event of insufficiency, abdication or limitation of their claims, which could, in any event, have been allocated in the context of the main proceedings.
The existence, therefore, of a main office and a secondary branch in relation to which, because they were situated in different States of the European Union, different insolvency proceedings had been commenced would not have made it possible to identify, in relation to each of them, a respective debtor legal entity or mutually insensitive assets, thus correspondingly reducing the possibilities of satisfaction for the creditor whose claims had been related to only one of those branches.
That difference could, however, have been relevant for those limitations which, according to the domestic law of each of the States concerned, could have conditioned the exercise of the claims for payment, since the claim, which in the legal system of the branch enjoys a privilege in relation to the assets present there, could well not have a similar preferential ranking under the law of the State of the parallel proceedings, in which, however, the possibility of its ranking according to the relevant classification parameters could not have been excluded.
Thus, it was apparent that the proponent appeared to have considered in a legally differentiated manner, on the one hand, the party that had initiated the main composition procedure opened in Romania, and on the other hand, the party that had initiated the secondary procedure, identifying, in respect of each, different assets and corresponding debtors. Since, however, the secondary dependency does not have its own autonomous subjectivity different from that of the 'parent company', it did not appear, as a result, that reciprocal debt/credit situations could be identified that were autonomously appreciable and legally relevant, which, on the other hand, had been given prominence in the wording of the request for composition, such as to allow, as regards the ancillary procedure, the use of liquidity as if it were a financial contribution made by a third party.
In addition, it was noted that - as could clearly be inferred from Article 45 of Regulation (EC) No 848/2015, which states that 'any creditor may lodge his claim in the main insolvency proceedings and in any secondary insolvency proceedings' - the creditor in the secondary proceedings must be guaranteed treatment at least equivalent to that which he would have received in the main proceedings.
In view of the fact that the indications in the proposal in this regard were general and not specific, in order for that condition conditioning the legality of the secondary proceedings to be fulfilled, it was necessary for the offeror to have provided adequate information on the forms and methods of satisfaction that the creditors in the secondary proceedings could obtain in the main proceedings, taking into account, as regards creditors with preferential claims, the possibility or otherwise of asserting their preferential position in the foreign context, and as regards unsecured creditors, the manner and timing of the satisfaction of their claims.
This allegation was, moreover, decisive because in the main proceedings the proponent had clearly excluded Italian creditors from the proceedings as the exclusive addressees of the proposal articulated in the secondary proceedings, and such exclusion could meanwhile have been deemed not to be contrary to the European Union rules if it had not adversely affected the rights of local creditors.
The proponent proceeded with the relevant amendments to the request for composition and specified that:
- bearing in mind the legal uniqueness of the proposing entrepreneur, the assets involved in the secondary procedure would consist solely of the assets existing in the territory of the state where the dependency was located;
- in compliance with what was expressly provided for in the main Romanian procedure - which was in the executive phase following the homologation - the secondary dependency would have benefited from a liquidity contribution drawn from the same, cadenced in time, for the declared purpose of 'making the treatment offered to creditors equivalent, regardless of the country of relative residence'; furthermore, it made an analytical indication in a comparative manner of the treatment that each category of creditors would receive in each of the two insolvency proceedings (main and secondary), with reference to the nature of the claim, the possibility of its legal qualification as preferential or unsecured and the percentages and timeframes for satisfaction, giving clear evidence, as regards creditors belonging to the secondary branch, of the preference of the ancillary procedure over an alternative consideration of them in the context of the main one.
The court, therefore, declared the secondary arrangement procedure open, noting, for what is of interest herein, that:
- on the assumption of the previous opening of the main proceedings opened at the Bucharest Court, the proposer having its own secondary branch in the territory of the state, which entrenched its territorial jurisdiction pursuant to Articles 3(2) and 34 of EU Regulation No 848/2015
- the offeror's state of crisis, in the form of insolvency, had already been established in the main composition procedure and, in accordance with the provisions of the aforementioned Article 34, did not need to be reviewed in the secondary one
- the administrator of the main proceedings, with certain knowledge of the pendency of the secondary proceedings - if only considering that the relevant approved plan had provided for the devolution of liquid resources to the secondary proceedings
- had not exercised the power of 'commitment' referred to in Article 36 of the Community legislation, which, in the event, was an obstacle to the continuation of the ancillary proceedings, in accordance with the provisions of Article 38 below;
- the application for composition, in compliance with the application of the provisions of Article 34 and Article 3(2) of the said regulation, had legitimately taken as reference only the assets existing in the territory of the State, the value of which amounted to 180,000.00 euros
- the applicant had provided an adequate indication of the treatment that each creditor whose claim related to the secondary establishment could have received if, availing himself of the option provided for in Article 45 of the Community regulation, he had lodged his claim in the context of the main procedure, by means of a comparative table and by pointing out the more favourable conditions recognised in the secondary procedure, also as a consequence of the validity and effectiveness in domestic law (the rules of which, pursuant to Article 7 of the Regulation, should have been applied to the secondary procedure) of the secondary proceedings. 7 of the Regulation, should have been applied) of prelitigation causes of action that would not, on the other hand, have been admitted and applied in the main composition procedure; the proponent had pointed out that the secondary procedure provided for longer time periods for the settlement of the composition debt than those established in the main procedure (indicated therein as 18 months with the possibility of increasing them by a further 12 months for a total maximum of 30 months), noting, however, at the same time, that this was correlated with higher payment percentages than those that could have been applied in the alternative context; such prospectus, based on objectively verifiable data, was to be considered persuasive and acceptable.
The court further noted, with regard to cross-border aspects, that the request for composition had provided that the claim pertaining to the State Treasury, originally of a preferential nature, after being downgraded to unsecured status due to the absence of assets on which the legal guarantee could be enforced, as attested by a sworn expert's report, would be satisfied only partially and not in full. 182 ter of the bankruptcy law establishes that the percentage of fulfilment envisaged cannot be lower than that established for creditors with similar claims.
In the present case, however, the proposal for composition had indicated full payment for unsecured creditors for amounts not exceeding €5,000.00; this was due to the existence of a similar provision in the main proceedings opened and approved by the Court of Bucharest and was in possible conflict with the provisions established for unsecured tax credits and with the reference domestic law.
The court held that this arrangement of the composition plan, although apparently at variance with the domestic legislative provision, should be considered legitimate and correct since it was imposed by the implementation of the principle of par condicio omnium creditorum, which is the guiding principle of the European Union's rules on cross-border insolvency.
Such precepts should have been immediately applicable in the territory of the State, in compliance with the provisions of the founding treaties of the European Union (in this case, Article 288 TFEU) and, in the event of a conflict with domestic legislation, the latter could not have been used, given the prevalence of the European legislation (as also affirmed by the Court of Cassation, among others, in the judgment of 1. 09.09.2011 no. 17966); by virtue of such regulatory principles, therefore, it should have been ruled out that the provision of full payment of a class of creditors, although formally not in line with the provision of Article 182-ter of the bankruptcy law, but in line with the unitary Euro regulatory text, could have determined, in part, cause of legal unfeasibility of the arrangement transaction.
b) Currently, due to causes related to the beginning of the war between Russia and Ukraine, Blue Air Aviation has been subjected to the liquidation procedure in Romania (March 2023), while the secondary arrangement procedure, opened in Italy, has been resolved (July 2023).
The Court of Rome was required to resolve another insolvency case, with cross-border implications, involving Romania. The case concerned 'Astaldi SPA', an Italian company based in Rome and operating in several foreign countries, including Romania, where in 1998 it set up a plant with approximately 600 employees, whose main object was the construction of residential and non-residential buildings.
The case, similarly to what has already been observed with respect to the 'Blue Air Aviation S.A.' case, focuses on the connection between the request promoted by Astaldi for admission to the arrangement with creditors pursuant to Article 161 of the Bankruptcy Law and the commencement of insolvency proceedings in the State of Romania, where the Italian company has a branch.
The legal context in which the application for admission to the arrangement with creditors, which was based on the company's participation in a public procurement contract in Romania, was certainly out of the ordinary.
The Italian bankruptcy court benefited from the non-opening of a second insolvency proceeding in Romania, for which the Bucharest Court ruled.
On this point, it is worth recalling the outcome of the latter judgment, which, for the purposes of identifying territorial jurisdiction, had as its main object the application of European Regulation 2015/848.
The insolvency proceedings pending before the Bucharest Court represent a tangible example of the direct application of EU Regulation 2015/848, which entered into force on 25 June 2015.
The principle contemplated by the European legislation, to which the Romanian judge referred in the Astaldi judgment, is that contemplated by Article 3(1), according to which the jurisdiction for the opening of insolvency proceedings of an undertaking belongs to the court in whose territory the centre of the debtor's main interests is located.
With this provision, the European legislator affirms the theoretical model of the 'limited universality', characterized by the identification of main proceedings, opened in the place where the company has its COMI, i.e. the centre of the debtor's interests, the place where he conducts business in a habitual manner recognizable to third parties.
The Bucharest Court came to the conclusion that Astaldi SPA has its COMI in Italy and an establishment in Bucharest, since the establishment in Romania never represented in the eyes of creditors the place where control and administration were exercised, and that the exercise of power in that place actually constituted only a part of the company's activity, whose centre of gravity is Italy.
Based on this important assumption, the Court of Bucharest, disregarding the objection of inadmissibility raised by Astaldi, initially recognized the existence of the requirements for the opening of secondary insolvency proceedings in Romania, as governed by articles 38 et seq. of the Regulation, and then closed the proceedings following the waiver by the creditors.
It is therefore clear that, in the context of the arrangement with creditors, the Court of Rome was not at all burdened by any form of restriction or limitation by the Romanian jurisdiction.
However, it is interesting to note that, given the previous opening of Astaldi's “concordato preventivo” procedure in Italy, only secondary proceedings within the meaning of Article 3(3) of Regulation No 848/215 could have been opened in Romania.
Astaldi's resistance to the hypothesis of the opening of secondary proceedings in Romania is probably attributable to the greater difficulties which the company would have encountered in managing in two different countries two separate, albeit connected, insolvency proceedings, and to the probable difficulties which it would have encountered in the continuation of the procurement contracts underway in Romania.
Coordination between the two situations, as required by European legislation, did not pose any problems with regard to the opening of the Italian proceedings for two reasons: firstly, because these were opened first in 2018 pursuant to Article 3(3) of the Regulation, so that Italy was elected as the jurisdiction for the main insolvency proceedings and, secondly, because the opening of the secondary proceedings in Romania suffered a setback following the waiver by local creditors.
It is evident that the proceedings in question represent the exact opposite of the case involving Blue Air Aviation S.A., for which the problem of cross-border coordination between proceedings proved to be more complex.
This was because Italy, in that case, constituted the secondary branch of a company with its COMI in Romania, where the main arrangement procedure had been initiated.
Indeed, in the case at hand, the coordination rules, already referred to in the Blue Air Aviation S.A. case, such as, for example, Article 38 of the Regulation, which provides that when the court of a Member State is seised of a petition for the opening of secondary insolvency proceedings, before deciding to open such proceedings, it must immediately inform the administrator of the main proceedings so that he may avail himself of the faculties provided for by Article 36 of the Regulation, have not been applied.
In this regard, see also Article 19 of the Regulation, according to which the recognition in a member state (Romania) of the decision by which other proceedings were opened in a different state (Italy) is a consequence of the circumstance that the opening of the main proceedings produces direct effects in the state of the secondary proceedings.
This case, although characterized by the non-opening of the secondary procedure in Romania, highlights in a plastic way the importance of the adoption of the European Regulation, which in any case offers legal and economic operators a framework of absolute clarity.
It seems appropriate, in this regard, to make a brief mention of a collateral case involving Astaldi SPA and an insolvency procedure initiated in Chile, the State where the multinational company had a secondary office, which was already in a state of insolvency, so much so that the Chilean creditors requested the opening of essentially bankruptcy proceedings.
This procedure would have entailed very serious economic, legal and reputational consequences for Astaldi, which asked the Court of Rome for authorization to begin negotiations for a restructuring plan involving a number of countries at risk, including Chile, where it is not conceivable to obtain recognition of an Italian composition procedure, with the consequent risk that creditors might initiate local initiatives to compulsorily collect their receivables.
The authorization, nevertheless, would have resulted in a breach of the par condicio creditorum, in favor of the Chilean creditors, who demanded payment of the entire credit in principal, with a reduction only in respect of interest.
The terms of the restructuring agreement provided for: (a) full payment of the principal portion of Astaldi Chile's receivables; (b) payment of an interest rate agreed with the creditors of no more than 6% (since it is not provided for by Chilean law that the pendency of the procedure stops the course of interest); (c) payment of 75% of the receivables and the respective interest in a period of no more than 35 months, through monthly or quarterly instalments; d) in the 36th month from the approval of the debt restructuring agreement, the payment of a single instalment representing 25% of the principal of the receivables and of the respective interest; e) in the event that the execution of new works resulted in a contingent asset for Astaldi Chile, any payment would be implemented through extraordinary depreciation.
The Court of Rome, moving from the guarantor rationale that governs the bankruptcy system, which focuses on the equal treatment of creditors in bankruptcy, authorized Astaldi to accede to the Chilean request, even though the price paid was having to submit to the requests of Chilean creditors, to the detriment of Italian creditors.
This brief reference to the Chilean situation is opportune insofar as it describes the onerous conditions that can characterize foreign contexts where the risk borne by Italian creditors is a plausible consequence of the non-recognition in loco of the effects of the Italian composition agreement, or of other domestic measures.
This makes it possible to draw a parallel with the Community context and to emphasize the importance assumed by the European Regulation, as regards the ultra-effectiveness of its provisions and the coordination function it performs within the Union's borders.
Indeed, in the Chilean context, qualified as 'at risk', there is a lack of a regulation of direct and uniform territorial application, capable of scanning the coordination between cross-border proceedings, identifying the order in which they should be initiated and, above all, protecting the par condicio creditorum. As a result, the domestic legal system is deprived of the means of defense that can stem the effects of those foreign judgments, or of those restructuring agreements, that do not recognize the effects of the composition agreement entered into in the home legal system, because, for example, it is deemed not binding, with consequent damage to the balance of par condicio creditorum and to the formation of assets.
On the contrary, in the case of Romania and all the member states of the European Union, there is a unifying regulation (the Regulation), which is directly applicable like the Treaties and self-executing directives. This is due to the cogency assumed by supranational law in the internal legal systems, with respect to which it stands in a monistic relationship, id est marked by the cession of shares of national sovereignty in view of the higher purpose that drives the European Communities.
From the hierarchical force of the regulatory provisions follows a particularly pregnant 'extensive effect' that, although in Astaldi it was very limited due to the waiver of the secondary procedure, emerges forcefully in the comparison with non-European contexts, such as that of Chile.
Returning to the practical case, it can be observed that, following the non-opening of the secondary procedure in Romania, the application for admission to the procedure pursuant to Article 161 L.F had as its focal point the company's participation in a procurement procedure precisely in Romania. The road to participation in the procurement procedure was opened precisely by the combination of the measures of the two judicial authorities and the principles affirmed by the European Regulation, which allowed the prior resolution of the legal issues that could hinder it. 
In the petition filed pursuant to Articles 161, paragraph 7 and 186 bis, paragraph 4 of the Italian Bankruptcy Law, the company, already in a state of economic crisis, requested admission to the procedure in order to continue the process of awarding the tender and, in the event of a positive outcome, to sign the contract with the contracting Romanian entity, in this case the National Road Infrastructure Administration Company S.A., and justified the validity of its claims by citing as a key argument the pending public contract for a duration of 5 years.
Indeed, the subject of the public procurement procedure was the awarding of design and execution works for the Sibio-Pitesti motorway, for a significant amount that would have allowed the company to acquire a contract for the period necessary to maintain the highest category of 'SOA' certification. 
According to the bankruptcy court's assessment and on the basis of the elements attached to the proposal, the formulation of an arrangement plan "in continuity" was well-founded, as it was supported by adequate financial and operational assumptions, in compliance with Article 160 of the Bankruptcy Law.
The amount of the contract in question, together with other requirements of reliability and convenience, allowed the Court to rule in favor, pursuant to Article 168-bis, paragraph 3, of the Italian Bankruptcy Law, noting that the participation in the tender appeared functional to the plan referred to in Article 161, letter e), paragraph 2, of the Bankruptcy Law.
As a corollary to the aforesaid application, a request for authorization was submitted to the Court of Rome for the signing of the procurement contract, which was granted without further communications or formalities to the Romanian court.
The overall economic and legal advantage for all the parties involved is quite evident, given that the Italian company was able to complete its participation in the Romanian tender, the Romanian government was able to take advantage of the offer of the operator considered to be the most advantageous counterparty, also in function of the rapidity of the conclusion of the operations aimed at the award of the contract.
7 . Conclusions. Proposals to improve international judicial cooperation in cross-border insolvency matters
 As most recently pointed out by the doctrine: «For the first time in a European text, EIR 2015/848 expressly includes the obligation of cooperation by the courts in charge of insolvency proceedings and does so both in respect of individual debtors, against whom different insolvency proceedings are opened in different Member States, and in respect of those involving companies belonging to a group. Its predecessor, Regulation 2000/1346 (EIR 2000/1346), regulated only the insolvency of individual debtors and when it established the obligations of cooperation between proceedings it placed them exclusively on insolvency practitioners, without any reference to the courts. In that system, single proceedings could be opened against each individual debtor over the entirety of his estate (‘universal’ proceedings) in the Member State where his centre of main interests was situated (COMI) and one or more territorial proceedings in the Member States where he had an establishment. Where a number of proceedings were opened, EIR 2000/1346 laid down obligations of cooperation and communication on insolvency practitioners, without any mention of equivalent obligations on the part of judges or courts, and certain rules based on the premise that territorial proceedings were subordinate to universal proceedings. The fact that that debtor could also be part of a group of companies was irrelevant for the purposes of EIR 2000/1346. EIR 2015/848 maintains this scheme of distribution of powers in relation to the individual debtor, but introduces rules relating to the insolvency of groups of companies to be applied alongside those affecting individual debtors. In regulating this issue, EIR 2015/848 opts for the solution that could be considered the most conservative of all those considered when dealing with these issues in the international sphere. Leaving aside pure territorialism and any possibility of procedural and, of course, substantive concentration, it establishes a system in which each company in the group is the subject of insolvency proceedings in the State where it is appropriate according to the rules of international jurisdiction contained in its Article 3, but the various proceedings opened must be coordinated with each other in order to allow a coordinated restructuring of the group, geared to its efficiency and respecting the separate legal personality of each group member. Similarly, cooperation between insolvency practitioners should not be detrimental to the interests of creditors in the individual proceedings and should aim to achieve a solution that promotes synergy within the group. These rules on cooperation in the field of insolvency are a concrete expression of the general objective of judicial cooperation in civil matters having cross-border implications, which is to be implemented by the European Union, as per Article 81 of the Treaty on the Functioning of the European Union (TFEU). In that context, EIR 2015/848 requires courts to cooperate. It is not merely a power conferred on the courts, or an expression of goodwill intended to promote the best possible conduct of international proceedings, but provides that "a court before which a request to open insolvency proceedings is pending, or which has opened such proceedings, shall cooperate with any other court before which a request to open insolvency proceedings is pending, or which has opened such proceedings […]” (art. 42, EIR 2015/848). The burden of cooperation is therefore no longer placed solely on insolvency practitioners, as was the case under EIR 2000/1346, but the judges must also cooperate with each other and with the said practitioners, as per Articles 41 to 43 of EIR 2015/848 for insolvency proceedings in respect of individual debtors and Articles 56 to 58 for insolvency proceedings in respect of companies in the same group» [82].
Court cases involving failing companies operating in Italy and Romania demonstrate the importance of international cooperation in this matter, not only among insolvency representatives, but also among bankruptcy courts. The challenge, for the future, is for judicial authorities to become increasingly aware of the importance of cooperation and for bankruptcy courts to become familiar with the tools for coordinating proceedings opened against the multinational enterprise that the European legal system makes available.
Such instruments, it has been seen, include Insolvency Protocols.
In the preceding pages, the massive use of protocols in international practice has been emphasized several times; and it has also been pointed out that the instrument is particularly suitable for group restructuring and the preservation of the business continuity of the companies of the group.
From a more general point of view, it can be said that such agreements represent a further piece of the so-called "contractual law of the insolvency", which is occupying more and more space in the insolvency system, including at the European level[83]. In this context, greater familiarity of judges in civil law jurisdictions with such coordination instruments could be the way to increase international judicial cooperation in this crucial matter. 


In the Guide to Enactment and Interpretation of the Model Law on Cross-Border Insolvency, elaborated by Uncitral in 1997, it is stated that the Model Law has as its subject matter «cases where the debtor has assets in more than one State or where some of the creditors of the debtor are not from the State where the insolvency proceeding is taking place» (UNCITRAL, UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, New
York, 2014, 19).
In literature, for a definition of international (or transnational) insolvency see, for all, FLASCHEN e PLANK, The Foreign Representative: A New Approach to Coordinating the Bankruptcy of a Multinational Enterprise, 10 Am. Bankr. Inst. L. Rev., 2002, 111.
DROBNIG, Cross-border Insolvency. General Problems, in Forum Internationale, 1993, 12; GARRIDO, No Two Snowflakes the Same: The Distributional Question in International Bankruptcies, 46 Tex. Int’l L.J., 2011, 459; HOWELL, International Insolvency Law, in 42 Int’l Law., 2008, 113; LOPUCKI, Cooperation in International Bankruptcy: A Post- Universalist Approach, in 82 Cornell L. Rev., 1999, 702; ID., Global and Out of Control?, 79 Am. Bankr. L.J., 2005, 92; RASMUSSEN, A New Approach to Transnational Insolvencies, 19 Mich. J. Int’l L., 1997, 18; ID., Where are All the Transnational Bankruptcies?: The Puzzling Case for Universalism, 32 Brook. J. Int’l L., 2007, 983; WESTBROOK, Theory and Pragmatism in Global Insolvencies: Choice of Law and Choice of Forum, 65 Am. Bankr. L.J., 1991, 446; ID., The Lessons of Maxwell Communication, 64 Fordham L. Rev., 1996, 2531; ID., Universal Priorities, in 33 Tex. Int’l L.J., 1998, 36; ID., A Global Solution to Multinational Default, 98 Mich. L. Rev., 2000, 2276; ID., Priority Conflicts as a Barrier to Cooperation in Multinational Insolvencies, 27 Penn. St. Int’l L. Rev., 2009, 869; MAZZONI, Osservazioni in tema di gruppo transnazionale insolvente, in RdS, n. 4/2007, 2; ID., Concordati di gruppi transfrontalieri e disciplina comunitaria delle procedure di insolvenza, RdS, 2010, 553; ID., Cross-border insolvency of multinational groups of companies: proposals for an European approach in the light of the Uncitral approach, AA.VV., Insolvency and Cross-border Groups. UNCITRAL Recommendations for a European perspective?, Quaderni di Ricerca Giuridica della Banca d’Italia, n. 69/2011, 15; SCIUTO, Crisi dell’impresa e crisi della sovranità statale nel mercato globale, Riv. trim. dir. pubb., 2009, 423.
Just think of the States which, in recent times, have adopted the Model Law on Cross-border Insolvency drawn up by Uncitral. Many other legal systems, even though they have not formally adopted the Model Law, have adopted extremely complete and detailed disciplines on the subject of cross-border insolvency: this is the case, for example, remaining on the old continent, for Spain (cf. articles 199-230 Ley Concursal); Portugal (cf. articles 271-296 Codigo da insolvencia e recuperação de empresas) and Germany (§§ 335-358 Insolvenzordnung).
The reference is, of course, to the Italian legal system (see infra, §…).
On the problems that determine - both at a microeconomic level (i.e., from the point of view of predictability and certainty of the legal situations of the subjects involved in the crisis) and macroeconomic (considering, that is, the repercussions on the credit market and on the economy of our country) - such disinterest, please refer to VATTERMOLI, Par condicio omnium creditorum, Riv. trim. dir. proc. civ., 2013, I, 155.
In the Guide to Enactment and Interpretation of the Model Law it is stated that: «The increasing incidence of cross-border insolvencies reflects the continuing global expansion of trade and investment. However, national insolvency laws by and large have not kept pace with the trend, and they are often ill-equipped to deal with cases of a cross- border nature. This frequently results in inadequate and inharmonious legal approaches, which hamper the rescue of financially troubled businesses, are not conductive to a fair and efficient administration of cross-border insolvencies, impede the protection of the assets of the insolvent debtor against dissipation and hinder maximization of the value of those assets. Moreover, the absence of predictability in the handling of cross-border insolvency cases can impede capital flow and be a disincentive to cross-border investment» (UNCITRAL, UNCITRAL Model Law on Cross-Border Insolvency, cit., 20). On this point, see JACK, A Missing Variable: the Impact of Cross-Border Insolvency Laws on Foreign Direct Investment, 27 Minn. J. Int’l L., 2018, 313; GUIHOT, Cross-Border Insolvency: A Case for a Transaction Cost Economics Analysis, 25 Norton Journal of Bankruptcy Law and Practice, 2016, 1.
CARLE, La faillite dans le droit International privé, traduction by E. Dubois, Paris, 1875, 31.
LOPUCKI, Cooperation in International Bankruptcy, cit., 702-703. 
WESTBROOK, Theory and Pragmatism in Global Insolvencies, cit, 466.
RASMUSSEN, A New Approach to Transnational Insolvencies, cit., 18; WESTBROOK, A Global Solution, cit., 2276.
DROBNIG, Cross-border Insolvency, cit., 12.
WESTBROOK, Comment: A More Optimistic View of Cross-Border Insolvency, 72 Wash. U. L.Q., 1994, 947. 
ALWANG, Note, Steering the Most Appropriate Course Between Admirality and Insolvency: Why an International Insolvency Treaty Should Recognize the Primacy of Admirality Law over Maritime Assets, 64 Fordham L. Rev., 2623.
With the clarification, however, that «transaction costs are particularly problematic for International bankruptcies»: ADAMS-FINCKE, Coordinating Cross-Border Bankruptcy, cit., 50. As correctly pointed out by the authors cited above,
«multiple insolvency cases in several countries for the same debtor duplicate transaction costs and vastly decrease economic efficiency. Differences in legal systems also add substantial costs because the decision-makers must educate themselves in the laws of every country involved».
In fact, the Preamble of the Model Law states that one of the objectives of the soft law text is to «greater legal certainty of trade and investment».
BUFFORD, Global Venue Controls Are Coming: a Reply to Professor LoPucki, 79 Am. Bankr. L.J., 2005, 120-121: «In calculating expected economic benefits, parties are assumed to take into account the legal systems and rules that will likely govern how their transactions are carried out and the benefits are allocated. In addition, the parties must evaluate the risks undertaken, including how these risks will be handled under the applicable legal system. If it is uncertain what legal system will govern the risks, it is difficult to quantify them. Where the distribution rules of legal systems are different, the ultimate beneficiaries of transactions may differ from those the parties have anticipated ex ante. Thus the application of varying distribution rules may result in the parties’ entering into sub-optimal transaction, and leave them poorer than they would have been otherwise».
CARLE, La faillite dans le droit International privé, cit., 24-25: «Quel ques oit le lieu du contrat, à quelque Etat que les contractants appartiennent, il faut que la législation à appliquer et la jurisdiction compétente soient connues d’une manière certaine. Le doute sur ces questions ne peut être dans les affaires civiles, en raison de leur lenteur ordinaire, une source d’aussi graves dommages que dans le commerce, où la célérité est essentielle».
LOPUCKI, Universalism Unravels, cit., 158.
«The core concept of universalism is that a single court should have control over the assets of a bankrupt multinational firm. This court should apply its nation’s laws to decide between reorganization and liquidation and to determine priorities among creditors. It should control the administration of the assets of the debtor and should make the distributions to creditors worldwide. The role of other courts should be merely to render assistance to representatives of the home court. Under universalism, one court plays the tune and everyone else dances» (LOPUCKI, Cooperation in International Bankruptcy: A Post-Universalist Approach, cit., 699). BIERY, BOLAND-CORNWELL, A Look at Transnational Insolvencies & Chapter 15 of the Bankruptcy Abuse Prevention and Consumer Prot. Act of 2005, 47 B.C. L. Rev., 2005, 23; WESTBROOK, A Global Solution to Multinational Default, cit., 2276; TRAUTMAN-WESTBROOK-GAILLARD, Four Model for International Bankruptcy, 41 Am. J. Comp. Law, 1993, 573; PERKINS, Note. A Defense of Pure Universalism in Cross-Border Corporate Insolvencies, 32 N.Y.U. J. Int’l L. & Pol., 2000, 787; GUZMAN, International Bankruptcy: In Defense of Universalism, 98 Mich. L. Rev., 2000, 2177. Pure universalism «is not a single-court system, but a dominant-court system» (LOPUCKI, The Case for Cooperative Territoriality, 98 Mich. L. Rev., 2000, 2221). 
SALAFIA, Cross-Border Insolvency Law in the United States & its Application to Multinational Corporate Groups, 21 Conn. J. Int’l L., 2006, 287; CLARK-GODSTEIN, Sacred Cows: How to Care for Secured Creditors’ Rights in Cross-Border
Bankruptcies, 46 Tex. Int’l L.J., 2011, 513.
GARRIDO, No Two Snowflakes the Same, cit., 467.
GUZMAN, International Bankruptcy: In Defense of Universalism, cit., 2177.
TUNG, Is International Bankruptcy Possible?, 23 Mich. J. Int’l L., 2001, 39; KIPNIS, Beyond UNCITRAL: Alternatives to Universality in Transnational Insolvency, Denver Journal of International Law and Policy, 2008, 166.
HOWELL, International Insolvency Law, cit., 115: «when applying a territorial approach, courts require multinational debtors to reorganize piecemeal under conflicting laws of several countries. And, because territorialism requires a multinational debtor to commence separate insolvency proceedings in each country, it creates increased costs to both the debtor and the debtor’s multinational creditors. Further, individual countries suffer from increased judicial expenses as a result of duplicative insolvency proceedings. In sum, a court’s decision to adopt a territorial approach, while satisfying the interests of local creditors, will be overly burdensome for the debtor and multinational creditors, result in duplicative proceedings, and unnecessarily dissipate judicial resources». Moreover, not dissimilar observations had already been made at the end of the 19th century by LOWELL, Conflict of Laws as Applied to Assignments for Creditors, in 1 Harv. L. Rev., 1888, 259 ss., spec. 264. There are, however, also some advantages associated with the adoption of the territorialism model, as evidenced by KIPNIS, Beyond UNCITRAL, cit., 168: «Territoriality offers three distinct advantages as a regime of International bankruptcy. First, it is significantly more predictable and flexible than the other regimes discussed in this paper. Second, despite the multiplicity of proceedings in multiple countries that are necessary in a regime of territoriality, the costs of such proceedings are contained because each country’s court is dealing only with domestic assets and applying domestic laws. Third, it allows local creditors to litigate in a closer and more convenient forum than they would be able to under a regime of universality».
To avoid this result, which is clearly contrary to the par condicio creditorum, the most important texts of uniform insolvency law include the so-called hotchpot rule, which we find both in the Uncitral Model Law of 1997 and in the EIR n. 848/2015.
ADAMS-FINCKE, Coordinating Cross-Border Bankruptcy: How Territorialism Saves Universalism, 15 Columbia Journal of European Law, 2009, 49-50: «The case for pure universalism is easy to state in economic terms. The minimization or elimination of transaction costs produces the most efficient economic transactions that create the greatest economic value. Bankruptcy systems are designed to reduce transaction costs, specifically debt collection costs, through collective action. However, multiple bankruptcy cases tend to defeat the benefits of collective action by multiplying the costs of participation and administration. Thus, where a single main insolvency case can be entrusted to protect creditors, to reorganize or to liquidate business, to protect jobs, and to provide for an orderly and economical administration of the case, economic efficiencies are created»; BEBCHUCK-GUZMAN, An Economic Analysis of Transnational Bankruptcies, 42 J. L. & Econ., 1999, 775.
RASMUSSEN, Where are All the Transnational Bankruptcies, cit., 983: «The near-consensus in the academy had little impact on practice. Countries clung stubbornly to territorialism. Each country asserted primary jurisdiction over the assets found within its borders. The cries of the academic commentators went unheeded». Adde, ADAMS- FINCKE, Coordinating Cross-Border Bankruptcy, cit., 53; MCCORMACK, Universalism in Insolvency Proceedings and the Common Law, 32 Oxford Journal of Legal Studies, 2012, 325.
TUNG, Is International Bankruptcy Possible, cit., 46.
ADAMS-FINCKE, Coordinating Cross-Border Bankruptcy, cit., 54: «Finally, one of the biggest criticisms of the universalism is the uncertainty surrounding how to determine the home country of a multinational corporation».
GARRIDO, No Two Snowflakes the Same, cit., 470, «One of the most important obstacles to universalism is the existence of different priority regimes. Universalism “create incentives for priority inflation”: if the priorities created by a legal system are recognized to have a worldwide effect, the chances of priorities being effective actually increase, and the legislator may feel prone to expand the categories of protected creditors as much as possible»; WESTBROOK, Priority Conflicts, cit., 869; ADAMS-FINCKE, Coordinating Cross-Border Bankruptcy, cit., 46.
HOWELL, International Insolvency Law, cit., 113; DALHUISEN, International Insolvency and Bankruptcy, Bender ed., 1986, 190.
NADELMANN, Solomons v. Ross and International Bankruptcy Law, 9 Mod. L.R., 1946, 167-168: «Flexibility in the rules appears to be indispensable in international bankruptcy. The situations which arise are so varied that any one rigid rule cannot solve all of them satisfactorily (…) Neither the theory of territoriality not the theory of ubiquity can cope adequately with the divergent situations».
Among which - in addition to modified universalism and cooperative territorialism, which will be discussed in the text - we should also mention the so-called "contractualism" (developed by RASMUSSEN, A New Approach to International Insolvencies, cit., 1), a model in which it is the debtor company itself that, in the statute (and therefore, ex ante), identifies which will be, in case of insolvency, the competent judge to open collective proceedings, as well as the applicable lex concursus.
WESTBROOK, The Lessons of Maxwell, cit., 2531.
LOPUCKI, Cooperation in International Bankruptcy, cit., 742.
PERKINS, Note, A Defense of Pure Universalism, cit., 791.
DI SANO, COMI: the sun around which cross-border insolvency proceedings revolve, in Journal of International Banking Law Regulation, 2009, 88.
NEIMAN, International Insolvency and Environmental Obligations: A Prelude to Resolving the Conflicting Policies of a Clean Slate Versus a Clean Site in Transnational Bankruptcies, in 8 Fordham J. Corp. & Fin. L., 2003, 826; ANDERSON, The Cross-Border Insolvency Paradigm: A Defense of the Modified Universal Approach Considering the Japanese Experience, in 21 U. Pa. J. Int’l Econ. L., 2000, 691, which emphasizes as such model «retains some of the efficiencies of pure
universalism while incorporating the flexibility and discretion of the territorial approaches».
«Modified universalism is universalism tempered by what is practical at the current stage of International legal development» (NEIMAN, International Insolvency and Environmental Obligations, cit., 826).
PERKINS, Note. A Defense of Pure Universalism, cit., 732.
FARLEY, An Overview, Survey, and Critique of Administering Cross-Border Insolvencies, 27 Hous. J. Int’l L., 2004, 199.
LOPUCKI, Cooperation in International Bankruptcy, cit., 742-743: «Under the cooperative territoriality system I propose, the bankruptcy courts of a country will administer the assets of a multinational debtor within the borders of that country as a separate estate. If a debtor had significant assets in several countries, several independent bankruptcy cases might result. None would be main, secondary, or ancillary. Each of the courts would decide, according to local law and practices, whether the assets within its country’s borders would be reorganized or liquidated. If a court chose to liquidate the assets, it would distribute the proceeds according to its own rules of priority»; ID., Global and Out of Control, cit., 96.
RASMUSSEN, Where are All the Transnational Bankruptcies, cit., 987. 
PERKINS, Note. A Defense of Pure Universalism, cit., 823.
UNCITRAL, UNCITRAL Model Law on Cross-Border Insolvency, cit. BERENDS, The UNCITRAL Model Law on Cross-Border Insolvency: A Comprehensive Overview, 6 Tul. J. Int’l & Comp. L., 1998, 309; CLIFT, The UNCITRAL Model Law on Cross-Border Insolvency: A Legislative Framework to Facilitate Coordination and Cooperation in Cross-Border Insolvency, 12 Tul. J. Int’l & Comp. L., 2004, 307.
UNCITRAL, UNCITRAL Legislative Guide on Insolvency Law. Part three: Treatment of enterprise groups in insolvency, New York, 2012, 83 (International issues). VATTERMOLI, Gruppi multinazionali insolventi, Riv. dir. comm., 2013, I, 585.
Available on line at https://uncitral.un.org/en/MLEGI. VATTERMOLI, La UNCITRAL Model Law on Enterprise Group Insolvency, Diritto della banca e del mercato finanziario, 2021, II, 133.
Principles for Effective Insolvency and Creditor/Debtor Regimes (2011), available online at http://siteresources.worldbank.org.
Cross-border Insolvency Concordat (1995), available on line at www.ibanet.org. NIELSON-SIGAL-WAGNER, The Cross-Border Insolvency Concordat: Principles to Facilitate the Resolution of International Insolvencies, 70 Am. Bankr. L.J., 1996, 533; CULMER, The Cross-Border Insolvency Concordat and Customary International Law: Is It Ripe Yet?, 14 Conn., J. Int’l L., 1999, 563.
Transnational Insolvencies: Principles of Cooperation Among the Nafta Countries (2003), available on line at http://www.ali.org/doc/InsolvencyPrinciples.pdf. WESTBROOK, The Transnational Insolvency Project of the American Law Institute, 17 Conn. I. Int’l L., 2001, 99; ID., Multinational Enterprises in General default: Chapter 15, the ALI Principles, and the EU Insolvency Regulation, 76 Am. Bankr. L.J., 2002, 1; BEAVERS, Bankruptcy Law Harmonization in the Nafta Countries: The Case of the United States and Mexico, Colum. Bus. L. Rev., 2003, 965. 
In general, on soft law (or droit mou or mitigated law) the reference can only be to DUPUY, Droit déclaratoire et droit programmatoire: de la coutume sauvage à la soft law, L’élaboration du droit international public, Paris, 1975, 132 (where, at 140, the plastic representation of soft law as "unripe law" - droit vert -, to express «la maturité insuffisante de la règle de droit»).
Among these, mention should also be made of the introduction of specific rules (articles 78-83) for the protection of personal data. On these rules see, most recently, WESSELS-KOKORIN, Cross-Border Cooperation and Communication: How to Comply with Data Protection Rules in Matters of Insolvency and Restructuring, International Corporate Rescue, 2/2019, 98.
MAZZONI, La disciplina europea dell’insolvenza transfrontaliera: problemi aperti e prospettive di riforma, Il Nuovo Diritto delle Società, n. 14/2013, 137. On the problems generated by the identification of the COMI under Regulation no. 1346 of 2000 - problems which emerged resoundingly in the Eurofood and Interedil cases - see, among others, WESSELS-KOKORIN, European Union Regulation on Insolvency Proceedings: An Introductory Analysis, 4th edition, 2018, Alexandria.
LATELLA, The “COMI” Concept in the Revision of the European Insolvency Regulation, European Company and Financial Law Review, 2015, 479.
RINGE, Insolvency Forum Shopping, Revisited, LAZIĆ-STUIJ, Recasting the Insolvency Regulation. Improvements and Missed Opportunities, The Hague, 2020, 1. 
MANGANO, The Puzzle of the New European COMI Rules: Rethinking COMI in the Age of Multinational, Digital and Glocal Enterprises, European Business Organization Law Review, 2019, 779. 
On the importance of cooperation in dealing with cross-border insolvency see, among others, WESTBROOK, Choice of Avoidance Law in Global Insolvencies, 17 Brook. J. Int’l L., 1991, 516; CLIFT, The Uncitral Model Law, cit., 307; BURMAN, Harmonization of International Bankruptcy Law: A United States Perspective, 64 Fordham L. Rev., 1996, 2543; NIELSEN-SIGAL-WAGNER, The Cross-Border Insolvency Concordat, cit., 533; WESTBROOK, Creating International Insolvency Law, 70 Am. Bankr. L.J., 1996, 563; CULMER, The Cross-Border Insolvency Concordat, cit., 563; CLIFT, Developing an international regime for transnational corporations: the importance of insolvency law to sustainable recovery and development, 20 Transnational Corporations, 2011, 139. 
See Articles 56(2)(a) and 57(2), Regulation No. 848/2015 and Recommendation No. 243, Uncitral Legislative Guide. In addition to the recognition in the hands of judges and administrators of the generic power to communicate with their foreign counterparts, domestic laws should also regulate the "technical" aspects of communications, clarifying, for example, whether these should take place orally or through written documents; identifying the means that can be used for this purpose (ordinary mail; fax; e-mail; telephone; videoconference); establishing the content of such communications and setting possible limits for those concerning certain "sensitive" information; finally, regulating the rights of the subjects involved in the crisis, should the exchange of information affect their procedural and/or substantial positions.
There is no doubt that the provision of simultaneous (or joint) hearings relating to collective proceedings opened, in different countries, against companies belonging to the same group, potentially represents an efficiency factor in the management of cross-border insolvency. In this regard, it is sufficient to think, by way of example, of the phase of verifying liabilities, in which the joint "treatment" of issues (e.g.: exceptions to set-off; incidental revocatory actions; involuntary subordination of credits; etc.) arising from intra-group acts (e.g.: provision of guarantees, real or personal; financing; cash pooling contracts; etc.) would certainly constitute a tool for speeding up the management of cross-border insolvency. On the other hand, however, it is not possible to make a decision on the approval of the group agreement, where the advantage offered by the simultaneous treatment of the issues that could lead to the rejection of the application is even more evident (especially in the hypothesis in which the proposals presented by the group companies are conditional on the approval - and subsequent approval - of the other). On the other hand, however, it is impossible not to highlight the difficulties encountered in using this instrument of cooperation. Some of them are operational: on this point, it is sufficient to think of the costs that the administration of justice would have to bear for the purchase of technological material to support the joint handling of hearings (e.g.: videoconference systems) and for the work of translators; but also, and independently of the expenses to be borne, of the difficulties linked to the different time zones in which the bankruptcy courts concerned operate. Other, much more serious, problems concern the issue - particularly delicate in the case of simultaneous hearings - of compliance with procedural rules on access to the proceedings pending before the foreign authority, on the production of documents and, more generally, on the provision, admission and acquisition of evidence, on the limits of jurisdiction and, finally, on the notification of documents to the parties concerned.
The feeling is that, at present, the coordination of hearings is a tool that can be used only in cases where the legal systems concerned belong to the same legal tradition and share a common linguistic matrix (in practice, in fact, joint hearings are almost always used on the Canada/USA axis, starting with the Everfresh Beverages case of 1995: on this point, see, for all, LEONARD, Managing Default by a Multinational Venture: Cooperation in Cross-Border Insolvencies, 33 Tex. Int’l L.J., 1998, 543). It is not surprising, therefore, that in Recommendation No. 245 of the Legislative Guide (relating, precisely, to the coordination of hearings), "may" is used - and this is the only case in which this happens - and not "should". The coordination of hearings is also provided for in Article 57(3)(d), EU Regulation No. 848/2015. 
 Recommendation No. 241(c) of the Legislative Guide - which on this point replicates the provision contained in Article 27(a) of the Model Law of 1997 - states that cooperation may be achieved by means of the appointment "of a person or body to act at the direction of the court"; Art. 57(1) EU Regulation No. 848/2015 states that for the purposes of cooperation, "The courts may, where appropriate, appoint an independent person or body to act at their direction, provided that this is not incompatible with the rules applicable to them." For example, an international law firm could best perform this function, working not only with the courts, but also with the representative bodies of the proceedings and interested parties, with functions that can range from facilitating the exchange of information to the more challenging task of preparing a cross-border insolvency agreement. The person in question does not represent a new organ of the insolvency procedure, nor can he be assimilated to a "super-prosecutor", but should be classified, more modestly, among the auxiliaries of justice, drawing his powers from the act of appointment of the court, in which the functions assigned to him should be specifically indicated.
This form of cooperation - expressly provided for both by articles 56, par. 2, letter b) and 57, par. 3, letter c) of EU Regulation no. 848/2015 and by Recommendation no. 241, letter b) of the Legislative Guide - is extremely appropriate, especially in cases where the activities of the individual members of the group are economically integrated with each other. It is not rare, in fact, that the various companies of a group take care of one phase of a single business: in such a case, a coordinated management of the sale operations, which allows to achieve a "en bloc" transfer of assets that are part of distinct assets, could lead to results that are decidedly advantageous for creditors (without prejudice, obviously, to the need to respect the separation of assets between the various companies, through an appropriate distribution of the proceeds from the sale). But that's not all: coordination could also lead to the decision to "slow down" or "suspend" liquidation operations, or have as its object the strategy to be followed with regard to the fate of pending contracts, thus facilitating the continuation of the activity of the group company and the preparation of global recovery plans. 
On this point, see Article 56(2), last sentence, Regulation No. 848/2015.
See Recommendation No. 250(d), Legislative Guide.
See art. 56, par. 2, letter c) of EU Regulation no. 848/2015 and Recommendation no. 250, letter e), Legislative Guide. With respect to the latter hypothesis, it must be said that even if the representative of the insolvency proceedings is not, under national law, among the parties entitled to present the proposal with the reorganization plan to be submitted to the creditors for approval, he or she can still play an important role in the reorganization attempt, by acting as an intermediary for the coordination of the various procedures and cooperating with the debtor (or the proposing party) and the other representatives of the foreign procedures, so as to create the best conditions (for example, by drawing up a positive report on the proposal) for the plan to be approved by those entitled to vote. 
See Article 57(3)(a) of EU Regulation No. 848/2015 and Recommendation No. 251 of the Legislative Guide.
On the insolvency protocols see WARREN-WESTBROOK, Court-to-court Negotiation, 22 Am. Bankr. Inst. J., 2003, 28; ZUMBRO, Cross-Border Insolvencies and International Protocols – an Imperfect but Effective Tool, 11 Bus. L. Int’l, 2010, 157; BRAUN-TASHIRO, Cross-border Insolvency Protocol Agreements between Insolvency Practitioners and their Effect on the Rights of Creditors, available online at www.iiiglobal.org; SARRA, Maidum’s Challenge, legal and governance issues in dealing with cross-border business enterprise group insolvencies, 17 Int. Insolv. Rev., 2008, 84: VAN DE VEN, The Cross-Border Insolvency Protocol; what is it and what in in it?, Master Thesis, Leiden Law School, 2015; ALTMAN, A Test Case in International Bankruptcy Protocols: The Lehman Brothers Insolvency, 12 San Diego Int’l L.J., 2011, 463; BAER, Toward an International  Insolvency Convention:  Issues,  Options and Feasibility  ConsiderationsBusiness Law  International,  2016,  5; BARTELD, Cross-Border Bankruptcy and the Cooperative Solution, 9 Int’l L. & Mgmt. Rev., 2012, 27; ESPINIELLA MENÉNDEZ, Los protocolos concursales, ADCo, n. 10/2007, 165; BUFFORD, Revision of the European Union Regulation on Insolvency Proceedings – Recommendations, 2014, available online at http:ssrn.com/abstract=2382133, 28; JACKSON- MASON, Developments in court to court communications in International insolvency cases, University of New South Wales Law Journal, 2014, 507; DEANE-MASON, The UNCITRAL Model Law on Cross-Border Insolvency and the Rule of Law, International Insolvency Review, 2016, 138; FLASCHEN-SILVERMAN, Cross-Border Insolvency Cooperation Protocols, 33 Tex. Int’l L.J., 1998, 587; LEONARD, Internationalization of Insolvency and Reorganizations, 24 Int’l Bus. Law., 1996, 203; LUBBEN-WOO, Reconceptualizing Lehman, New York University Law and Economics Working Papers, Paper n. 347,
2013; MALTESE, Court-to-court Protocols in Cross-Border Bankruptcy Proceedings: Differing Approaches Between Civil Law and Common Law Legal System, available online at https://www.iiiglobal.org. In the document drawn up by UNCITRAL, Practice Guide on Cross-Border Insolvency Cooperation, New York, 2010,
3, it is highlighted how these instruments of cooperation take on different names in international practice: «Cross-border insolvency agreements are most commonly referred to in some States as “protocols”, although a number of other titles have been used, including “insolvency administration contract”, “cooperation and compromise agreement” and “memorandum of understanding”».
NIELSEN-SIGAL-WAGNER, The Cross-Border Insolvency Concordat, cit., 533.
In fact, the first cross-border insolvency agreement can be traced back to the Macfadyen case, which involved the English and Indian courts in the early 1900s. The case concerned two companies, based in London and Madras, made up of the same partners and operating in the market as if they were, in reality, a single company. Having opened insolvency proceedings against the two partnerships, the bodies of the same agreed - through a protocol - to consider the assets as a single mass and the liabilities as a single mass (a sort of substantial consolidation), thus proceeding to the pro-rata distribution of the proceeds of the liquidation among all the creditors; in the agreement, moreover, the bodies of the respective proceedings established to «Exchange lists of admitted claims, agreed to be bound by the determinations of the other as to admitted claims, and promised that wichever of them ended up with a surplus of assets would make a globally ratable distribution by remitting to the other such balance as may be necessary in order to ensure such rateable distribution» (WESSELS-MARKELL-KILBORN, International Cooperation in Bankruptcy and Insolvency Matters, New York, 2009, 177).
In re Maxwell Communications Corp (93 F 3d 1036 (2d Cir. 1996)). Maxwell Communication Corporation plc was the UK-based holding company for a group of more than 400 subsidiaries, some based in the UK, some in Canada and some in the US, where approximately 80% of the value of the group's assets were located. The day after the request for submission to Chapter 11 for lack of liquidity, the parent company also submitted a request to the English High Court of Justice for admission to the administration procedure. Once the two procedures were opened, the judicial authorities negotiated and approved - through the work of the three administrators appointed by the English judge and the examiner appointed by the US judge - a "protocol", in order to harmonize the two procedures and minimize the costs and conflicts generated by transnational insolvency. The administrators were entrusted with the function of monitoring the "corporate governance" of the holding company; the examiner was given the task, among other things, of authorizing specific acts of extraordinary administration. In January 1993, a reorganization plan and a scheme of arrangement were presented, the contents of which had been previously negotiated by the bodies of the two procedures: both proposals were accepted, and the Maxwell group was partly reorganized and partly liquidated. More details on the Maxwell case can be obtained from FLASCHEN- SILVERMAN, Cross-Border Insolvency Cooperation Protocols, cit., 587; HOFFMANN, Cross-Border Insolvency: A British Perspective, 64 Fordham L. Rev., 1996, 2507; WESTBROOK, The Lessons of Maxwell Communications, cit., 2534.
WESSELS-MARKELL-KILBORN, International Cooperation, cit., 176; KAMALNATH, Cross-Border Insolvency Protocols: A Success Story?, IJLSR, 2013, 172.
In the document Guidelines for Coordination of Multinational Enterprise Group Insolvencies, published in 2012 by the International Insolvency Institute, it is stated on page 17 (nt. 16) that "The use of protocols is quite common in both civil and common law countries". The first case in which insolvency protocols have been used to handle open proceedings against the same debtor in a common law system (USA) and a civil law system (Israel) is In re Joseph Nakash [in 190 B.R. 763 (1996)]. For more details on the Nakash case see FLASCHEN- SILVERMAN, Cross-Border Insolvency, cit., 593.
See Section 27(d) LM and Recommendations 253-254 of Part III of the Legislative Insolvency Guide. On this point see ZUMBRO, Cross-Border Insolvencies and International Protocols, cit., 164: «The adoption of the Model Law has been vital to the proliferation of protocols, in part because jurisdictions that have adopted the Model Law are expressly authorized to employ cross-border protocols».
On this subject, cf. the (prophetic) observations contained in UNCITRAL, Practice Guide, cit., 35: «insolvency agreements occur in practice more frequently between common law jurisdictions, where courts have wider discretion than in jurisdictions in which statutory authorization to enter into such arrangements (…) is needed. However, commentators of civil law countries are generally of the view that insolvency agreements will become more common in the future due to their successful use in cross-border insolvency proceedings».
See Art. 56(1), EU Regulation No. 848/2015 and Recommendation No. 253, Legislative Guide. 
See Article 57(3)(e) EU Regulation No. 848/2015 and Recommendation No. 254, Legislative Guide. Guideline No. 8 of the Guidelines for Coordination of Multinational Enterprise Group Insolvencies states that: «Where courts are not permitted to authorize or to direct the parties to enter into the agreements or protocols referred to in Guideline No. 7, the debtors, the insolvency representatives or the creditors should, where permitted, initiate development of agreements or protocols to promote the orderly, effective, efficient and timely administration of the cases». 
In which case we would be faced with a form, albeit evolved, of "judicial dialogue": in this sense, VALLAR, Use of Cross-Border Insolvency Protocols, cit. Moreover, in practice «It is rarely the case that an agreement is entered into between the courts, although in some jurisdictions this might be possible. However, negotiations between parties in cross-border cases are frequently assisted by the courts and they may provide the impetus for reaching an agreement» (UNCITRAL, Practice Guide, cit., 33). 
SARRA, Maidum’s Challenge, cit., 84. On UNCITRAL, Practice Guide, cit., 32 is stated that: «Very often the negotiation of cross-border insolvency agreements is initiated by the parties to the proceedings, including the insolvency practitioners or insolvency representatives and, in some cases, the debtor (including a debtor in possession), or at the suggestion and with the encouragement of the court; some courts have explicitly encouraged the parties to negotiate an agreement and seek the courts’ approval. The early involvement of the courts may, in some cases, be a key factor in the success of the agreement. Typically, the parties that enter into an agreement vary depending upon the applicable law and what is permitted, for example, with respect to the powers of the insolvency representatives, the courts and other parties in interest. Frequently, they are entered into by the insolvency representatives, sometimes by the debtor (usually a debtor in possession), and may involve the creditor committee or, in one or two of the cases examined, individual creditors, such as major lenders». 
FLASCHEN-SILVERMAN, Cross-Border Insolvency, cit., 590. Annex 1 oh the European Communication and Cooperation Guidelines for Cross-border Insolvency, cit., contains a sort of checklist of what a protocol should/could contain, including the basic requirements, which are summarized as follows: «1. A clause should be inserted, stating that nothing contained in the protocol shall be construed to increase, decrease or otherwise affect in any way the independence, sovereignty or jurisdiction of the relevant national courts; 2. An additional clause should be inserted, stating that the courts involved shall be entitled at all times to exercise its independent jurisdiction and authority with respect to matters presented to the courts and the conduct of the parties appearing in such matters, including the court’s ability to provide appropriate relief on an ex parte basis or a limited notice basis; 3. A clause could be inserted, stating that where there is any discrepancy between the Protocol and the Guidelines either one of them (the Protocol or the Guidelines) will prevail». 
ZUMBRO, Cross-Border Insolvencies and International Protocols, cit., 168; KAMALNATH, Cross-Border Insolvency Protocols, cit., 173. 
In Menegon v. Philip Services Corp., the Canadian court disapplied the protocol - which provided for a particular procedure for the approval of the plan for the reorganization of the group, different from that established in Canadian bankruptcy law - as it was considered contrary to the CCAA. The case is cited by SARRA, Maidum's Challenge, cit., 86-87, who concludes that «the protocols, while facilitating cross-border proceedings, cannot undermine domestic statutory standards». 
As LOPUCKI (Universalism Unravels, cit., 162) points out: «When international cooperation was needed, it would occur by agreement among the administrators (…) If the assets of the multinational would bring a higher price if sold together, it will be in the interest of the administrators to sell them together and split the additional proceeds among them». On this point see SARRA, Maidum’s Challenge, cit., 84; ZUMBRO, Cross-Border Insolvencies and International Protocols, cit., 160. 
UNCITRAL, Practice Guide, cit., 28: «In addition to promoting the efficient worldwide coordination and resolution of multiple proceedings against a debtor, cross-border insolvency agreements are also intended to protect the fundamental local rights of each of the parties involved in those proceedings. Their use has effectively reduced the cost of litigation and enabled parties to focus on the conduct of the insolvency proceedings, rather than on resolving conflict of laws and other similar disputes. As such, they are considered by many practitioners who have been involved with their use as the key to developing appropriate solutions for particular cases, without which a successful conclusion to the proceedings would have been very unlikely. Their increasing use suggests that in time they may become the norm in cases with a significant international element, although their use is not ubiquitous, currently being limited to a handful of States». 
 TORRALBA, The role of courts confronted with an insolvency protocol within the framework of EIR 2015/848, in VATTERMOLI-MADAUS-PASQUARIELLO-RECALDE (ed.), Transnational Protocols: A Cooperative Tool For Managing Cross-Border Insolvency, Milano, 2021, 407-410. 
To this end, it is sufficient to think, on the one hand, of the group coordination procedure, set forth in Articles 61-77 of EU Regulation No. 848/2015, and in particular of the provision (Art. 66. 1) that allows representatives of proceedings opened against group companies to agree (moreover, by majority vote) in order to identify the "most appropriate" court to open the coordination procedure, granting them, by way of derogation from the most basic principles of due process, the power to grant jurisdiction; and, on the other hand, the rule, contained in Art. 36 of the Regulation, which allows the administrator of a main insolvency proceeding to enter into a legally binding commitment to a group of creditors which, if accepted by the latter, produces the result of paralyzing the opening of secondary proceedings, in effect restricting by an act of private autonomy the jurisdiction of a member state.

informativa sul trattamento dei dati personali

Articoli 12 e ss. del Regolamento (UE) 2016/679 (GDPR)

Premessa - In questa pagina vengono descritte le modalità di gestione del sito con riferimento al trattamento dei dati personali degli utenti che lo consultano.

Finalità del trattamento cui sono destinati i dati personali - Per tutti gli utenti del sito web i dati personali potranno essere utilizzati per:

  • - permettere la navigazione attraverso le pagine web pubbliche del sito web;
  • - controllare il corretto funzionamento del sito web.


Che cosa sono i cookies - I cookie sono piccoli file di testo che possono essere utilizzati dai siti web per rendere più efficiente l'esperienza per l'utente.

Tipologie di cookies - Si informa che navigando nel sito saranno scaricati cookie definiti tecnici, ossia:

- cookie di autenticazione utilizzati nella misura strettamente necessaria al fornitore a erogare un servizio esplicitamente richiesto dall'utente;

- cookie di terze parti, funzionali a:


Google reCAPTCHA (Google Inc.)

Google reCAPTCHA è un servizio di protezione dallo SPAM fornito da Google Inc. Questo tipo di servizio analizza il traffico di questa Applicazione, potenzialmente contenente Dati Personali degli Utenti, al fine di filtrarlo da parti di traffico, messaggi e contenuti riconosciuti come SPAM.

Dati Personali raccolti: Cookie e Dati di Utilizzo secondo quanto specificato dalla privacy policy del servizio.

Privacy Policy


Questo tipo di servizi permette di visualizzare contenuti ospitati su piattaforme esterne direttamente dalle pagine di questa Applicazione e di interagire con essi.

Nel caso in cui sia installato un servizio di questo tipo, è possibile che, anche nel caso gli Utenti non utilizzino il servizio, lo stesso raccolga dati di traffico relativi alle pagine in cui è installato.

Widget Google Maps (Google Inc.)

Google Maps è un servizio di visualizzazione di mappe gestito da Google Inc. che permette a questa Applicazione di integrare tali contenuti all'interno delle proprie pagine.

Dati Personali raccolti: Cookie e Dati di Utilizzo.

Privacy Policy

Google Fonts (Google Inc.)

Google Fonts è un servizio di visualizzazione di stili di carattere gestito da Google Inc. che permette a questa Applicazione di integrare tali contenuti all'interno delle proprie pagine.

Dati Personali raccolti: Dati di Utilizzo e varie tipologie di Dati secondo quanto specificato dalla privacy policy del servizio.

Privacy Policy

Come disabilitare i cookies - Gli utenti hanno la possibilità di rimuovere i cookie in qualsiasi momento attraverso le impostazioni del browser.
I cookies memorizzati sul disco fisso del tuo dispositivo possono comunque essere cancellati ed è inoltre possibile disabilitare i cookies seguendo le indicazioni fornite dai principali browser, ai link seguenti:

Base giuridica del trattamento - Il presente sito internet tratta i dati in base al consenso. Con l'uso o la consultazione del presente sito internet l’interessato acconsente implicitamente alla possibilità di memorizzare solo i cookie strettamente necessari (di seguito “cookie tecnici”) per il funzionamento di questo sito.

Dati personali raccolti e natura obbligatoria o facoltativa del conferimento dei dati e conseguenze di un eventuale rifiuto - Come tutti i siti web anche il presente sito fa uso di log file, nei quali vengono conservate informazioni raccolte in maniera automatizzata durante le visite degli utenti. Le informazioni raccolte potrebbero essere le seguenti:

  • - indirizzo internet protocollo (IP);
  • - tipo di browser e parametri del dispositivo usato per connettersi al sito;
  • - nome dell'internet service provider (ISP);
  • - data e orario di visita;
  • - pagina web di provenienza del visitatore (referral) e di uscita;

Le suddette informazioni sono trattate in forma automatizzata e raccolte al fine di verificare il corretto funzionamento del sito e per motivi di sicurezza.

Ai fini di sicurezza (filtri antispam, firewall, rilevazione virus), i dati registrati automaticamente possono eventualmente comprendere anche dati personali come l'indirizzo IP, che potrebbe essere utilizzato, conformemente alle leggi vigenti in materia, al fine di bloccare tentativi di danneggiamento al sito medesimo o di recare danno ad altri utenti, o comunque attività dannose o costituenti reato. Tali dati non sono mai utilizzati per l'identificazione o la profilazione dell'utente, ma solo a fini di tutela del sito e dei suoi utenti.

I sistemi informatici e le procedure software preposte al funzionamento di questo sito web acquisiscono, nel corso del loro normale esercizio, alcuni dati personali la cui trasmissione è implicita nell'uso dei protocolli di comunicazione di Internet. In questa categoria di dati rientrano gli indirizzi IP, gli indirizzi in notazione URI (Uniform Resource Identifier) delle risorse richieste, l'orario della richiesta, il metodo utilizzato nel sottoporre la richiesta al server, la dimensione del file ottenuto in risposta, il codice numerico indicante lo stato della risposta data dal server (buon fine, errore, ecc.) ed altri parametri relativi al sistema operativo dell'utente.

Tempi di conservazione dei Suoi dati - I dati personali raccolti durante la navigazione saranno conservati per il tempo necessario a svolgere le attività precisate e non oltre 24 mesi.

Modalità del trattamento - Ai sensi e per gli effetti degli artt. 12 e ss. del GDPR, i dati personali degli interessati saranno registrati, trattati e conservati presso gli archivi elettronici delle Società, adottando misure tecniche e organizzative volte alla tutela dei dati stessi. Il trattamento dei dati personali degli interessati può consistere in qualunque operazione o complesso di operazioni tra quelle indicate all' art. 4, comma 1, punto 2 del GDPR.

Comunicazione e diffusione - I dati personali dell’interessato potranno essere comunicati, intendendosi con tale termine il darne conoscenza ad uno o più soggetti determinati, dalla Società a terzi per dare attuazione a tutti i necessari adempimenti di legge. In particolare i dati personali dell’interessato potranno essere comunicati a Enti o Uffici Pubblici o autorità di controllo in funzione degli obblighi di legge.

I dati personali dell’interessato potranno essere comunicati nei seguenti termini:

  • - a soggetti che possono accedere ai dati in forza di disposizione di legge, di regolamento o di normativa comunitaria, nei limiti previsti da tali norme;
  • - a soggetti che hanno necessità di accedere ai dati per finalità ausiliare al rapporto che intercorre tra l’interessato e la Società, nei limiti strettamente necessari per svolgere i compiti ausiliari.

Diritti dell’interessato - Ai sensi degli artt. 15 e ss GDPR, l’interessato potrà esercitare i seguenti diritti:

  • 1. accesso: conferma o meno che sia in corso un trattamento dei dati personali dell’interessato e diritto di accesso agli stessi; non è possibile rispondere a richieste manifestamente infondate, eccessive o ripetitive;
  • 2. rettifica: correggere/ottenere la correzione dei dati personali se errati o obsoleti e di completarli, se incompleti;
  • 3. cancellazione/oblio: ottenere, in alcuni casi, la cancellazione dei dati personali forniti; questo non è un diritto assoluto, in quanto le Società potrebbero avere motivi legittimi o legali per conservarli;
  • 4. limitazione: i dati saranno archiviati, ma non potranno essere né trattati, né elaborati ulteriormente, nei casi previsti dalla normativa;
  • 5. portabilità: spostare, copiare o trasferire i dati dai database delle Società a terzi. Questo vale solo per i dati forniti dall’interessato per l’esecuzione di un contratto o per i quali è stato fornito consenso e espresso e il trattamento viene eseguito con mezzi automatizzati;
  • 6. opposizione al marketing diretto;
  • 7. revoca del consenso in qualsiasi momento, qualora il trattamento si basi sul consenso.

Ai sensi dell’art. 2-undicies del D.Lgs. 196/2003 l’esercizio dei diritti dell’interessato può essere ritardato, limitato o escluso, con comunicazione motivata e resa senza ritardo, a meno che la comunicazione possa compromettere la finalità della limitazione, per il tempo e nei limiti in cui ciò costituisca una misura necessaria e proporzionata, tenuto conto dei diritti fondamentali e dei legittimi interessi dell’interessato, al fine di salvaguardare gli interessi di cui al comma 1, lettere a) (interessi tutelati in materia di riciclaggio), e) (allo svolgimento delle investigazioni difensive o all’esercizio di un diritto in sede giudiziaria)ed f) (alla riservatezza dell’identità del dipendente che segnala illeciti di cui sia venuto a conoscenza in ragione del proprio ufficio). In tali casi, i diritti dell’interessato possono essere esercitati anche tramite il Garante con le modalità di cui all’articolo 160 dello stesso Decreto. In tale ipotesi, il Garante informerà l’interessato di aver eseguito tutte le verifiche necessarie o di aver svolto un riesame nonché della facoltà dell’interessato di proporre ricorso giurisdizionale.

Per esercitare tali diritti potrà rivolgersi alla nostra Struttura "Titolare del trattamento dei dati personali" all'indirizzo ssdirittodellacrisi@gmail.com oppure inviando una missiva a Società per lo studio del diritto della crisi via Principe Amedeo, 27, 46100 - Mantova (MN). Il Titolare Le risponderà entro 30 giorni dalla ricezione della Sua richiesta formale.

Dati di contatto - Società per lo studio del diritto della crisi con sede in via Principe Amedeo, 27, 46100 - Mantova (MN); email: ssdirittodellacrisi@gmail.com.

Responsabile della protezione dei dati - Il Responsabile della protezione dei dati non è stato nominato perché non ricorrono i presupposti di cui all’art 37 del Regolamento (UE) 2016/679.


del trattamento dei dati personali

Società per lo studio del diritto della crisi

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