The organisers of the Conference thank the following

Avoidance proceedings before the Italian courts: avoiding Art. 13 of the Insolvency Regulation Luigi

Domestic Rules on Avoidance of Fraudulent Transactions • UK (Insolvency Act 1986): Sect. 423

Domestic Rules on Avoidance of Fraudulent Transactions • Purpose - protection of the estate

Avoidance of Fraudulent Transactions The International Element Necessity to solve a conflict of applicable

Avoidance of Fraudulent Transactions The Choice-of-Law Problem • application of the lex contractus, •

Avoidance of Fraudulent Transactions The Choice-of-Law Problem The EIR solution: • Art. 4. 2(m):

TWO ITALIAN DECISIONS Avoiding the application of Art. 13 EIR Corte di Cassazione, 7

TWO ITALIAN DECISIONS Avoiding the application of Art. 13 EIR Tribunale di Busto Arsizio,

CONCLUSION The Important Issue is: Education

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The organisers of the Conference thank the following for their support Conference Sponsor www. buse. de Conference Supporter Academic Forum Sponsor Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili www. cndcec. it www. edwincoe. com

Avoidance proceedings before the Italian courts: avoiding Art. 13 of the Insolvency Regulation Luigi Fumagalli, University of Milan

Domestic Rules on Avoidance of Fraudulent Transactions • UK (Insolvency Act 1986): Sect. 423 • Germany (Insolvenzordnung – Ins. O 1994): § 129 -146 • Spain (Ley concursal 2003): Art. 71 • France (Code de Commerce): Art. L 632 -1 – L 632 -4 • Italy (Legge fallimentare 1942 - 2006): Art. 64 -70

Domestic Rules on Avoidance of Fraudulent Transactions • Purpose - protection of the estate - equal treatment of creditors • Need to reconcile the interests of - creditors - bona fide recipients

Avoidance of Fraudulent Transactions The International Element Necessity to solve a conflict of applicable laws, i. e. between: • the lex contractus, and • the lex fori concursus

Avoidance of Fraudulent Transactions The Choice-of-Law Problem • application of the lex contractus, • application of the lex fori concursus • concurrent application of both laws

Avoidance of Fraudulent Transactions The Choice-of-Law Problem The EIR solution: • Art. 4. 2(m): the lex fori concursus • Art. 13: the lex contractus, if • proved by the recipient, • of a Member State and • does not allow any means of challenging in the relevant case

TWO ITALIAN DECISIONS Avoiding the application of Art. 13 EIR Corte di Cassazione, 7 February 2007 No. 2692 avoidance proceedings brought before an Italian court by the trustee in bankruptcy of an Italian company against a bank domiciled in the Republic of San Marino, the Italian Supreme court denied the applicability of Art. 13 of the EIR because… the defendant in the avoidance proceedings was domiciled in a State non member of the EU

TWO ITALIAN DECISIONS Avoiding the application of Art. 13 EIR Tribunale di Busto Arsizio, 21 January 2009 avoidance proceedings brought before an Italian court by the trustee in bankruptcy of an Italian company against a supplier domiciled in Spain, the Judge held that the defendant could not invoke the law applicable to the contract deemed avoidable by Italian law, because … avoidance is governed by the lex fori concursus

CONCLUSION The Important Issue is: Education