Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 70

In general, we can note that the new articles of the I. crisis c. dealing with shareholders position in restructuring proceedings provide for similar rules to the ones of the I.b.l. and, for this reason, many of the above-mentioned problems that arose from the latter will remain after the new Italian insolvency regulation will come in force in August 2020.

Anyway, there are also some important new rules in the I. crisis code.

First of all, as we have already said earlier, the new art. 118, paragraph 6, I. crisis c. provides for –as well as the previous art. 185, paragraph 6, I.b.l.– the appointment of a judicial officer with the power to vote instead of shareholders in order to enforce the approved agreement with creditors.

The new provision, on one hand, has a wider field of application than the previous one in I.b.l., as it states the enforcement tools for all the operations that can be provided by the restructuring plan and belong to the general meeting competence; on the other hand, instead, the judicial officer can now replace only the vote of the majority shareholder/shareholders, so that the minority shareholders seem to be able to keep their voting right.

The first news could be probably inferred also from previous article 185 I.b.l. As far as it concern the second new provision –inspired by the ones about shareholders position in Spanish ley concursal–, it is very difficult at the moment to understand its meaning, that is the reason to write down the voting rights only of majority shareholders. In particular, it is very demanding to explain what is the function of minority shareholders voting right in front of a decision of the shareholders meeting based on the majority principle80).

The new article 118 I. crisis c. does not overcome the problem of the enforcement of the approved agreement with creditors in the case of proposal of the company: the enforcement tool of the appointment of the judicial officer can be applied only when restructuring proceeding starts with a competing proposal of one creditor or of some creditors. For this reason, the interpretative solutions proposed about this matter under I.b.l. still keep their validity (s. above).