Quali finalità per il diritto fallimentare. Gli obiettivi perseguiti dall'attuale diritto fallimentare. Esperienze a confronto. Gli attuali progetti di riforma.Quali finalità per il diritto fallimentare. Gli obiettivi perseguiti dall'attuale diritto fallimentare. Esperienze a confronto. Gli attuali progetti di riforma.LUISS PhD Thesi

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DOTTORATO DI RICERCA IN DIRITTO ED IMPRESA – XXVIII CICLO 
Tesi: Obiettivi del diritto fallimentare e impresa. Un’inarrestabile evoluzione alla prova dell’effettività  
Dottorando: Costanza Alessi  
 
 1 
SUMMARY 
The constant evolution that has characterized the on-going progress of bankruptcy 
law, from Medieval times to the present day has generally moved in the same 
direction in all western countries. Bankruptcy systems have shifted from the 
penalization of entrepreneurs towards favouring reorganization. Moving beyond the 
goal of punishing the debtor and the elimination of the insolvent company from the 
market, a general awareness has been reached that, often, the preservation of 
businesses may determine considerable benefits for different parties (among which 
are employees, suppliers, customers, tax authorities). This evolution has brought forth 
the concept of reorganization: a new goal has thus appeared in bankruptcy law, 
besides the traditional one, which is always present, to a certain extent in all systems, 
and concerns creditor wealth maximisation.  
International organizations and European authorities all agree on the importance of 
favouring reorganization outcomes, often however without mentioning the complexity 
inherent in the coordination of two often conflicting objectives. The legislator is thus 
faced with a complicated task in determining which goals to achieve and what is the 
most suitable approach to achieve them. 
The Italian bankruptcy framework is highly fragmented and incoherent; it is 
impossible to conduct a thorough analysis identifying its pursued objectives. Each 
different bankruptcy procedure seems to exist on its own and not as part of a system. 
Only in the amministrazione straordinaria is the goal of maintaining business 
continuity pursued, with the aim of safeguarding the interests of all the involved 
stakeholders. In all other bankruptcy procedures, despite appearances and declarations 
of intent, reorganization is, at most, a tool made available to the parties; stakeholders 
are never directly protected. It shouldn’t therefore come as a surprise that the 
concordato preventivo does not effectively save businesses, but rather operates as a 
liquidation tool.  
In other countries, to which the Italian legislator has often looked to for inspiration in 
implementing its bankruptcy reforms, the choices have undoubtedly been more 
resolute. 
The United States is historically oriented towards granting discharge. It follows that 
Chapter 11 is aimed at enhancing value for the debtor (and not as much in general for 
all stakeholders). Creditors’ rights may be partially compressed, in order to ensure 
DOTTORATO DI RICERCA IN DIRITTO ED IMPRESA – XXVIII CICLO 
Tesi: Obiettivi del diritto fallimentare e impresa. Un’inarrestabile evoluzione alla prova dell’effettività  
Dottorando: Costanza Alessi  
 
 2 
that going concern value is preserved. Despite various amendments have, over time, 
increased the rights for the latter, the system is overall skewed towards ensuring 
reorganization, as the current reform proposal drafted by the American Bankruptcy 
Institute suggests. 
The French experience differs considerably from both the Italian and American one. 
Main goal of this framework is to safeguard going concern value to the point that the 
liquidation judiciaire operates only when reorganization may not be pursued. Various 
incentives are introduced to induce the debtor and its creditors to reach an agreement 
which provides for the continuance of business and allows the Tribunal de 
Commerce, when negotiation is unattainable, to impose waivers upon creditors. If one 
can disapprove of the choices made by the French legislator, the framework certainly 
provides an excellent example of one which is coherent, rational and consistent. 
In light of the above, the reform of the Italian bankruptcy law, which stems from the 
study conducted by the Rordorf Commission, serves as a major opportunity. 
Unfortunately, its current development leads to the conclusion that it represents yet 
another lost chance. The draft delegation law (Atto Camera 3671-bis), which was 
approved by the Chamber of Deputies on February 1st 2017, was not preceded by a 
comprehensive debate about the aims that a bankruptcy law should pursue and it lacks 
a clear and unambiguous approach. The bankruptcy procedure which mostly needed 
to be revised, especially to achieve greater coherence in the objectives pursued by 
bankruptcy law, is the one which undergoes less changes: the concordato preventivo’s 
main traits are, indeed, unaffected. The overall framework retains its flaws and 
peculiarities and additional critical issues are introduced by the proposed novelties 
(especially with reference to the misure di allerta). 
Despite the number of changes introduced in the last ten years to the Italian 
bankruptcy framework, and the ones that are still in the course of being finalized, the 
latter doesn’t seem to have any intention of seriously remodelling itself.  
 


Obiettivi del diritto fallimentare e impresa: un’inarrestabile evoluzione alla prova dell’effettività

Quali finalità per il diritto fallimentare. Gli obiettivi perseguiti dall'attuale diritto fallimentare. Esperienze a confronto. Gli attuali progetti di riforma

Obiettivi del diritto fallimentare e impresa: un’inarrestabile evoluzione alla prova dell’effettività

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