Insolvency and Restructuring Archives - Studio Legale De Berti Jacchia Franchini Forlani

LE FONTI DI FINANZIAMENTO ALTERNATIVE RISPETTO AL CANALE BANCARIO – Confindustria Alto Milanese, March 19th, 2024

marketude — Tue, 19 Mar 2024 16:06:20 +0000

Confindustria Alto Milanese organizza due appuntamenti per le imprese per fornire un quadro degli strumenti di finanza aggiornato al contesto attuale, in collaborazione con De Berti Jacchia Studio Legale :

Nell’ultimo dei due incontri gli argomenti trattati sono:

📌 Il ricorso a fonti di finanziamento dell’attività di impresa diverse dal canale bancario
📌 Mini bond e basket bond – il mercato Euronext Access Milan
📌 Il programma Elite di Borsa Italiana – la quotazione in Borsa e le recenti novità normative – il mercato EGM
📌 I mercati privati

Partecipano come relatori:

👤 Roberta Laveneziana – Borsa Italiana – Euronext Group
👤 Carolina Avanzini – Euronext Group
👤 Anna Marucci – Head of Debt and Funds Listing Italy – Euronext Group
👤 Avv. Paolo Barbanti Silva – De Berti Jacchia Studio Legale
👤 Massimiliano Gazzo – De Berti Jacchia Studio Legale

Moderano:

👤 Paola Roveda – Confindustria Alto Milanese
👤 Avv. Diego Conte – De Berti Jacchia Studio Legale

Gli incontri sono gratuiti ed aperti alle imprese e si terranno esclusivamente IN PRESENZA presso la sede di Confindustria Alto Milanese, via XX Settembre 30 a Legnano.
È possibile iscriversi entro il giorno prima dell’evento (salvo esaurimento posti).

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LA FINANZA DI DEBITO A SUPPORTO DELLA CRESCITA AZIENDALE – Confindustria Alto Milanese, February 20th, 2024

marketude — Tue, 20 Feb 2024 15:56:00 +0000

Nel primo dei due incontri gli argomenti trattati sono:

📌 Elementi contrattuali tipici dei finanziamenti
📌 L’accesso ai finanziamenti bancari: i Confidi e le ultime novità normative in tema di garanzie
📌 Il pegno mobiliare non possessorio
📌 Rimodulazione e rifinanziamento: strategie per combattere l’aumento dei tassi
📌 Aspetti fiscali e contabili della rimodulazione/rifinanziamento
📌 Analisi dei finanziamenti: riconoscere la convenienza della finanza di debito

Partecipano come relatori:

👤 Davide Sensini – Confidi Systema!
👤 Avv. Paolo Barbanti Silva – De Berti Jacchia Studio Legale
👤 Massimiliano Gazzo – De Berti Jacchia Studio Legale
👤 Alessandro Mattavelli – Dottore Commercialista e Docente di Pianificazione Strategica e Rating Advisory presso UNICATT MILANO

Moderano:

👤 Dott.ssa Paola Roveda – Confindustria Alto Milanese, Area Credito e Finanza
👤 Avv. Diego Conte – De Berti Jacchia Studio Legale

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LUCA PESCATORE NEW PARTNER AT DE BERTI JACCHIA

marketude — Mon, 16 Oct 2023 08:35:29 +0000

Milan, October 16, 2023 – Luca Pescatore joins De Berti Jacchia as a partner in the Rome office.

Pescatore, formerly head of the litigation and arbitration department of Baker McKenzie’s Rome office, started his professional experience as a partner in a boutique firm specialising in commercial and telecommunications law.

He deals with commercial law, bankruptcy law, public and private procurement and related litigation, with a particular focus on clients active in the construction, technology, pharmaceutical and automotive sectors.

He has extensive experience in real estate law.

He assists national and international groups in arbitration proceedings in procurement, telecommunications, aviation and renewable energy law, both as arbitrator and as counsel. He has been a member of the board of directors of a leading insurance company.

He is one of the founding members of the Istituto Superiore di Studi sull’Arbitrato (I.S.A.).

“De Berti Jacchia is a firm that stands out in the market for its technical quality and human trait,” comments Pescatore, “and it is a source of pride for me to be part of this team.

“With Luca’s arrival in the Rome office we enrich the firm with a multifaceted and well-prepared professional who shares our same values, in a number of areas destined to take on increasing strategic weight in the competitive arena of tomorrow’s legal profession,” says Roberto Jacchia, senior partner of the firm.

“We expect a lot from the synergies with Luca in the reality of our office. He really is the right person at the right time,’ comments Antonella Terranova, partner in charge of the Rome office.

IN THE PRESS

Il Sole 24 Ore – De Berti Jacchia Rafforza Il Contenzioso

Legalcommunity – Luca Pescatore nuovo partner di De Berti Jacchia

Global Legal Chronicle – Luca Pescatore nuovo partner di De Berti Jacchia

TopLegal – Luca Pescatore diventa partner di De Berti Jacchia

ADVFN – Studi legali: Luca Pescatore entra come partner in De Berti Jacchia

NT+ Diritto – Luca Pescatore nuovo partner di De Berti Jacchia

TopLegal- Nomine e lateral (19 Ottobre 2023)

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CORSO DI PERFEZIONAMENTO IN ACQUISIZIONI SOCIETARIE – Milan, June 15th, 2023

marketude — Thu, 15 Jun 2023 15:39:09 +0000

Cristina Fussi, partner di De Berti Jacchia Franchini Forlani Studio Legale, e Maria Rita Schiera, Partner dello Studio Legale Inzitari & Partners, terranno il 15 giugno 2023 una lezione su “Acquisizioni di società in crisi o nell’ambito di ristrutturazioni” nell’ambito del Corso di perfezionamento in Acquisizioni societarie organizzato dall’Università degli Studi di Milano per l’Anno Accademico 2022/2023

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28TH ANNUAL IBA GLOBAL INSOLVENCY AND RESTRUCTURING CONFERENCE – Madrid (Spain), May 21st – 23rd, 2023

marketude — Sun, 21 May 2023 14:15:18 +0000

At the IBA Global Insolvency and Restructuring Conference in Madrid Cristina Fussi is Conference Co-Chair.

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LE PRINCIPALI NOVITÀ DEL CODICE DELLA CRISI DI IMPRESA E DELL’INSOLVENZA (D.LGS. 14/2019) – ALIA LEGANO, May 4th, 2023

marketude — Thu, 04 May 2023 13:45:43 +0000

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EXCLUSION FROM EGRUL: POSSIBLE SUBSIDIARY LIABILITY OF THE CONTROLLING PERSONS

marketude — Thu, 19 Jan 2023 17:50:56 +0000

The practice concerning liability of controlling persons for debts of legal entities excluded from the unified state register of legal entities (EGRUL) following a decision from tax authority is being developed. In the past the Supreme Court and Constitutional Court of the Russian Federation took different views on this matter: from presumption of guilt for the controlling person to obligation of the creditors of the legal entity to monitor possible exclusion of such entity. In this article we will focus on the current court practice and the more correct approach.

According to the general rules that are applicable in case of bankruptcy^[1], subsidiary liability of the persons controlling the legal entity for the debts of such legal entity is frequently applied in practice. As provided by Art. 3, par. 3.1, of the Federal law dated 08.02.1998 No. 14-FZ “On limited liability companies” (hereinafter the “Law on LLC”), the persons controlling a legal entity excluded from EGRUL also bear subsidiary liability for the debts of such legal entity.

The court practice illustrated two possible approaches in applying subsidiary liability:

holding the controlling persons not liable since the creditors must monitor the situation with their debtor (inter alia, its exclusion from EGRUL);
holding the controlling persons liable if such persons allowed the exclusion from EGRUL of the legal entity with debts (unfair actions of the controlling persons in this regard are committed).

The Supreme Court^[2] clarified that exclusion of the company from EGRUL as a result of actions or omissions of the controlling persons are not considered as sufficient grounds for subsidiary liability of the controlling persons. It is required to prove that unreasonable and/or unfair actions (omissions) of the controlling persons led to inability of the legal entity to fulfil its obligations towards its creditors. This practically means that the controlling persons are liable for causing the bankruptcy of the legal entity. So, if the due procedure of liquidation of the legal entity was conducted, the debts of the such legal entity towards its creditors would still not be settled.

The Constitutional Court in its decision dated 21.05.2021 No. 20-П, on one hand, upheld the practice of the Supreme court as regards the grounds for holding the controlling persons liable. On the other hand, the Court pointed out that, in case of filing a claim with the courts to hold the controlling persons liable, the same controlling persons as defendant must prove that they did their best to fulfill their obligations towards the creditors of the legal entity. However, this interpretation was provided by the Constitutional Court merely in relation to physical persons as claimants, probably in order to protect physical persons from entrepreneurs. At the same time, the Constitutional Court added that this can also be appliable to physical persons.

Following this decision of the Constitutional Court, the courts have changed their practice and guilt of the controlling persons became a presumption only following to the exclusion from EGRUL of the legal entity with debts. This rule was applicable regardless of whom was the subject who filed a claim: either a physical person or an entrepreneur.

Considering this incorrect trend, the Supreme court has taken the decision by the Court Collegium for economic cases dated 03.11.2022 No. 305-ЭС22-11632 in the case No. A40-73945/2021 to clarify the following issues:

subsidiary liability under Art. 3, par. 3.1, of the Law on LLC is only possible in case of causing bankruptcy (inability to fulfill obligations towards the creditors) of the legal entity excluded from EGRUL;
there is no presumption of guilt in case of filing a claim by the creditors (entrepreneurs), so the claimant must prove that exclusion of the company from EGRUL occurred as a result of unreasonable and/or unfair actions (omissions) of the controlling persons that eventually led to the incapability of the legal entity to fulfill its obligations towards its creditors. The courts must determine whether the clamant presented any objections as regards the exclusion of the legal entity from EGRUL. This differs from the cases when claims are filed by physical persons when the guilt of the controlling persons is presumed^[3].

This position of the Supreme court represents the correct approach in terms of subsidiary liability. It is worthwhile mentioning that, even in bankruptcy cases, the Supreme court has never established the presumption of guilt just due to the fact that the claim was filed by a physical person. At the same time, it is obvious that the creditor, being an external person to the legal entity, is not able to prove its claim confirming the exact unreasonable and/or unfair actions (omissions) committed by the controlling persons if such creditor does not have access to the internal documentation of the legal entity.

Presumption of guilt of the controlling persons – as clarified by the higher court – in practice leads to the fact that the lower courts, in compliance with the instruction from the higher court, immediately take a decision concerning subsidiary liability of the controlling persons. Any attempts to prove the contrary by the controlling persons acting as defendant are unsuccessful. The position of the courts in this respect is that the controlling persons could act in a better way and thus prevent the legal entity from inability to fulfill its obligations towards its creditors, as well as exclusion of the legal entity from EGRUL. In the absence of such actions by the controlling persons, its subsidiary liability is reasonable.

In reality, a due balance between the claimant and the defendant is needed. On one hand, the controlling persons (defendant) must be given the opportunity to present even a minimum clarification as regards the financial situation of the legal entity prior to its exclusion from EGRUL and to disclose the documents requested by the claimant^[4]. On the other hand, the claimant (the creditor), on the basis of the information and documentation obtained from the defendant, must prove the essence of a causal connection between the actions (omissions) of the controlling persons and the inability of the legal entity to pay its debts towards the creditors, as well as to prove the guilt of the defendant.

Should the controlling persons deny to present such clarifications and disclose the evidence, this theoretically may be considered as an unfair behavior by the controlling persons. In this case, presumption of unfair behavior and guilty actions of the controlling persons seems to be reasonable.

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[1] As per Chapter III.2 of the Federal law dated 26.10.2002 No. 127-FZ “On insolvency (bankruptcy)” and the Decision of the Plenum of the Supreme Court of the Russian Federation dated 21.12.2017 No. 53.

[2] Decision of the Court collegium for economic cases of the Supreme Court dated 30.01.2021 No. 306-ЭС19-18285 in the case No. A65-27181/2018, Decision of the Court collegium for economic cases of the Supreme Court dated 25.08.2020 No. 307-ЭС20-180 in the case No. A21-15124/2018.

[3] Decision of the Court collegium for civil cases of the Supreme court dated 27.09.2022 No. 5-КГ22-63-К2

[4] Such approach can be found in the Decision of the Court collegium for economic cases of the Supreme court dated 09.08.2022 No. 307-ЭС22-5640 in the case No. A26-507/2021

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CRISTINA FUSSI APPOINTED AS CO-CHAIR OF THE INSOLVENCY SECTION OF THE INTERNATIONAL BAR ASSOCIATION (IBA) EFFECTIVE 1 JANUARY 2023

marketude — Wed, 04 Jan 2023 09:56:10 +0000

Effective 1 January 2023 Cristina Fussi (Milan, Italy) and Huan Tan (Utrecht, the Netherlands) succeeded Anja Droege Gagnier Droege (Paris, France) and Darío U Oscós Coria (Mexico City, Mexico) as co-chairs of the Insolvency Section of the International Bar Association (IBA).

The IBA, established in 1947, is the world’s leading organisation of international legal practitioners, bar associations, law firms and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 80,000 individual lawyers and nearly 190 bar associations and law societies spanning over 170 countries.

The Insolvency Section of the IBA is the most prominent international association of lawyers interested in restructuring, insolvency and creditors’ rights law, as well as related company law, transactional and litigation practices. Its principal goals are to:

provide a forum, at conferences twice a year (the IBA’s annual conference and the Insolvency Section’s own conference, usually in May), for substantive educational sessions presented by genuine experts on the most cutting-edge issues in restructuring, insolvency and creditors’ rights;
create a lively network of lawyers (private practitioners, corporate counsel, judges, academics and law reform opinion leaders) from common and civil law systems in developed, emerging and formerly centrally controlled economies; and
contribute to the reform and harmonisation of insolvency (and related) laws through permanent expert delegations to organisations such as the United Nations Commission on International Trade Law (UNCITRAL), the World Bank and the International Monetary Fund.

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FRENO ALLA POSSIBILITÀ DEI SOCI DI OSTACOLARE L’USCITA DALLA CRISI

marketude — Sat, 26 Nov 2022 10:16:18 +0000

Un freno alla possibilità dei soci di ostacolare irragionevolmente l’adozione di uno strumento di regolazione della crisi. Lo prevede il dlgs 83/2022 che ha modificato il codice della crisi impresa per recepire le disposizioni della c.d. Direttiva Insolvency. Ma l’incisività della misura è comunque tutta da provare.

Articolo di Paolo Barbanti Silva scritto per ItaliaOggi.

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DE BERTI JACCHIA: PAOLO BARBANTI SILVA APPOINTED AS NEW PARTNER

marketude — Mon, 03 Oct 2022 08:12:59 +0000

Milan, October 3, 2022 – De Berti Jacchia announces the joining of lawyer Paolo Barbanti Silva as a new Partner.

Paolo Barbanti Silva has gained significant professional experience over two decades mainly in the areas of capital markets, banking regulatory, private equity, debt restructuring and M&A.

Paolo, who is also a member of the New York Bar, has worked for the Bank of Italy, for a commercial bank and, among others, for two leading Italian law firms on major private equity, capital markets and debt restructuring transactions involving listed companies.

He has acquired a solid experience in transactions such as takeover bids and investments in listed companies with takeover bid exemption (such as investments in distressed companies in the context of debt restructuring processes), IPOs and listings, capital increases of listed and regulated companies, acquisitions of significant stakes in regulated companies and extraordinary transactions relating to listed and/or regulated companies.

Paolo has also assisted SGRs and institutional investors in acquisition transactions by reserved mutual funds, particularly in the real estate sector. He has also assisted listed and regulated companies in the ordinary activity, such as the preparation and conduct of shareholders’ meetings or transactions with related parties, as well as in the relations with the Supervisory Authorities; with the latter he has customary and mutually respectful relations matured over the years. He has received two appointments from IVASS as a member of the Supervisory Committee of insurance companies in compulsory liquidation.

Massimiliano Gazzo, Partner of De Berti Jacchia, comments: “Within the proposition of a full-service firm, the entry of lawyer Barbanti Silva strengthens our offer of legal services dedicated to the world of finance, capital markets and restructuring”.

Paolo Barbanti Silva comments: “I am thrilled to bring to a firm with such a prestigious history and with colleagues whose professionalism is widely recognised by the market, the skills acquired over years of practice in the fields of capital market law, financial regulation law and debt restructuring, and thus to enrich the range of services that the firm will be able to provide, in order to respond to clients’ needs in an increasingly comprehensive manner“.