La fiducia/trust con función de garantia en el derecho concursal. Una comparación entre la experiencias italiana y inglesa

This paper aims at analyzing how, and to which ends, trusts are used in the corporate crisis and bankruptcy respectively in the English and Italian legal experiences and at comparing the two relevant legal settings. In para 1, I briefly describe how the legal treatment of assets held on trust, in the bankruptcy respectively of the trustee and of the settlor, makes the trust an option as a security device in financial transactions as well as in corporate crisis landscapes. Para 2 turns then to examining the English experience with trusts in corporate insolvency and rescue. Quistclose and Kayford trusts are analyzed to begin with, by looking separately first at how they work and subsequently at the issues they create in terms of preferences and of transparency. The configuration of trusts within Company Voluntary Arrangement is addressed in para 2.2. Para 3 analyses the Italian experience with trusts in corporate insolvency and rescue. Para 4 draws a comparison and discusses its results.