Apporti esterni e garanzie di terzi nel concordato preventivo

The paper discusses how financial support offered by third parties to distressed business debtors in judicially supervised reorganization proceedings – specifically, the «concordato preventivo» – is regulated under Italian law, comparing it with personal guarantees and emphasizing similarities and differences between the two arrangements. It argues that art. 84, para 4, of the Italian Business Crisis and Insolvency Code (Codice della crisi e dell’insolvenza delle imprese) implicitly codifies a new nominate contract by imposing that the winding up plan shall entail a financial contribution by third parties that increases the total amount of assets available for creditor payments by at least 10%. Under this agreement the third party is either not entitled to claim the repayment of their contribution or has a claim that is subordinated to those of pre-existing creditors. The article further examines the standing of the insolvency practitioner to enforce the debtor’s claim against the third-party financer, particularly in the event that the reorganization plan fails before the contribution is executed, also analyzing the standing of the insolvency practitioner to enforce personal guarantees issued in the framework of reorganization proceedings.