Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 60

LORENZO BENEDETTI

Assistant Professor. University of Florence

Sumario:

  I. Introduction

  II. The issue of shareholders’ position in insolvency proceedings before the recent reforms

  III. Shareholders’ position in restructuring proceedings in Italy after the legislative decree (converted) 83/2015 and in the new Italian crisis code

  IV. Problematic issues: eligibility of a proposal of the company involving equity holders’ position

  V. Next: preconditions of the exclusion or limitation of pre-emptive rights

  VI. Next: the possibility for shareholders to avoid dilution or cancellation of their participation

  VII. Art. 185, paragraph 6, I.b.l.

  VIII. The shareholders protection

  IX. The evaluation of participation in the distressed company

  X. Some remarks about the news rules provided by I. crisis. c.

  XI. Short comparison with the rules provided by the EU directive on restructuring frameworks

ABSTRACT:

The article deals with the problem of equity holders' position in restructuring proceedings. Such a matter is new in the insolvency law of all European countries, where innovative rules about this topic have been introduced in Germany (ESUG), France (Loi Macron), Spain (Ley concursal). Moreover, new rules about this issue are provided by the EU directive about preventive restructuring frameworks.

All these rules try to achieve the same aim, nevertheless using different tools: to overcome shareholders' veto power in the enforcement of restructuring proceedings due to their competence –pursuant to company law– to approve structural operations regarding –i.e., operations whit an impact on the property structure of– the distressed company.

The work deals with the rules about shareholders' positions provided by article 163, paragraph 5 and 185, paragraph 6 of Italian bankruptcy law (I.b.l.) since 2015 –which will be replaced within August 2020 by art. 90 e 118 of the new Italian crisis and insolvency code (I. crisis c.), approved at the beginning of 2019– and it will compare that regulation with the ones of other foreign legal system.

Many issues arise from the new Italian regulation, regarding its field of application, its relationship and its coordination with the company law, the protection of shareholders' right.