Le procedure d'insolvenza nella disciplina comunitaria. Modelli di riferimento e diritto interno

The book is dedicated to the study of trans-boundary and European insolvency procedures and represents a relevant and useful instrument in the analysis of the international, European and national policies with reference to judicial cooperation in the field of the insolvency procedures. In particular, the work faces in deepened and exhaustive way the topic of the insolvency of debtors whose entrepreneurial activities is localised in more than one legal order, supplying a critical reconstruction of the European discipline setting up autonomous rules concerning jurisdiction and recognition and enforcement of foreign insolvency decisions. In order to bring on a systematic study of the problem, the volume is subdivided in three sections, respectively devoted to the analysis of i) the national and international models that can represent a reference in order to prepare an independent discipline dedicated to the trans-boundary insolvency, ii) the Regulation 1346/2000 and iii) national rules of the Italian legal order. In the first part of the book – Chapter I - the Author takes care of the techniques that have been employed in order to rule the insolvency of an enterprise having cross-border characters, verifying that, on the one hand, the traditional models of the “universality” and “territoriality” are not employed in “pure” forms in any legal order and that, on the other hand, there are many obstacles to the full realization of the universal vocation inborn in every insolvency discipline (that is aimed to guarantee the par condicio creditorum principle). Then, the Author analyses the positive and negative aspects of the so called “limited universality”, that represents the outline which currently inspires the most recent rulings both at the international and national level. Such a theory allows a connection between the different jurisdictions of the interested States with the insolvency, without imposing the opening of a sole procedure with universal effects, but concurring the slope of parallel proceedings by coordinating their effects. The universality in the limited form presupposes that the procedure opened in the country in which the centre of the main interests of the debtor is localised has main character and can have universal character, but this does not forbid the opening of local proceedings in the States in which another seat of the enterprise in crisis is found. Chapter II is dedicated to the study of national rules inspired by the limited universality principle, as well as to the analysis of the instruments created in order to favour the acceptance of such a model by national legislators (i.e. the Model Law on Cross-Border Insolvency and the Concordat of the International Bar Association). Among them, common law legal orders are taken in consideration (UK and USA), as well as civil law legislations (Switzerland, Germany and France). The Second Part of the monograph is devoted to the European common discipline of the insolvency and, in particular, to the analysis of Regulations 1346/2000 on insolvency procedures. Chapter III examines the evolution of the European judicial area that has brought to the adoption of the Regulation, emphasizing the reasons of the European Community intervention in this field. The following Chapters IV and V are dedicated to the deep analysis of the Regulation itself. To such purpose, detailed attention is given to the notion of “centre of the main interests” of the debtor and “establishment”, definitions relevant in order to operate the bipartition, made by the Regulation, between main and territorial-secondary insolvency procedures. Concerning recognition and enforcement of decisions rendered within the insolvency proceeding, the principle of mutual confidence that print the relationships between the Member States of the European Community is recalled. Such a principle has carried to the affirmation of the automatic recognition of decisions coming from European judges in civil and commercial matters, comprised those concerning bankruptcy. In the event in which decisions are wanted to produce their executive effects, it is said that the judge of the demanded State must always proceed to a preventive verification on the content and on the way of formation of the decision emitted in another EU State, exam that has to be brought on following the exequatur procedure verification set forth by Regulations 44/2001. The Third Part of the book, finally, is dedicated to the discipline of the insolvency in the Italian legal order, taking into account both rules contained in the bankrupt law and those introduced by private international law act (law 218/95). in this seat it is stressed the difficult coordination to which the interpreter is called upon when he has to face a cross-border insolvency case: in fact, while within the scope of application of Regulation 1346/2000 the main insolvency proceeding potentially has universal character, hypotheses that are not included in that scope of application remain subject to the rigid territorialistic principle that inspires the bankruptcy law of 1942 (that has not been modified yet). Chapter VI, therefore, proposes a new reading that, in an interpretative way, reconciles the conflicts gushing from the differences inspiring the different rules concerning jurisdiction and insolvency procedures with reference to the Italian legal order.