Vol 22 (2025) - Issue 6

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The Role of Creditors in Insolvency Proceedings: Cooperation Duties Under the New Italian Bankruptcy Code

Synopsis
The shift in European and Italian insolvency law – from a liquidation-based approach to one focused on preserving and restructuring viable businesses – has placed creditors at the centre of legal analysis. Their engagement can significantly shape both the direction and the outcome of insolvency proceedings, particularly in the context of out-of-court restructurings.
Against this background, the new Italian bankruptcy code (Codice della crisi d'impresa e dell'insolvenza, here inafter 'CCI') introduces general duties of behaviour for all parties involved in restructuring proceedings, including creditors. The imposition of duties of conduct on creditors is particularly innovative, considering that they have traditionally been seen as passive holders of rights and claims.
The paradigmatic provisions of this new regulatory framework are Article 4 CCI and Article 16 CCI. The former is placed among the 'General Principles' of the new bankruptcy code, within a specific section entitled 'Obligations of parties participating in the regulation of the crisis or insolvency', and it applies to any instrument and procedure. The latter concerns the duties of the parties in a new instrument, the negotiated settlement of a business crisis (composizione negoziata della crisi, hereinafter 'CNC'). This is a confidential out-ofcourt process whereby the debtor and all or some of its creditors are assisted during the negotiation process by an independent expert, appointed by the competent Chamber of Commerce.