LITIGATION FUNDING IN RELATION TO OTHER LEGAL CONCEPTS: A COMPARISON WITH PROCEDURAL SUBSTITUTION AND SUBSTITUTION IN RELATION TO A DISPUTED RIGHT.

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A brief introduction to Litigation Funding is undoubtedly necessary.

TPLF – Third Party Litigation Funding is an Anglo-Saxon practice that aims to provide private individuals, companies, public corporations, or local authorities with financial support (in some circumstances also professional support) to facilitate their access to justice.

This access is facilitated through the provision of a fund from which the above-mentioned parties can draw so as to avoid moving sums from their budgets and allow them to concentrate on their core business.

Already widely used abroad, it is a highly advantageous practice that is rapidly spreading throughout Italy.

There are various forms of TPLF. Currently, the most popular is the assignment of the chose in action whereby the Fund makes available an agreed sum for the purpose of “financially supporting” the costs of litigation, technical consultancy and any other expenses related to managing the litigation.

These sums by their nature, both legal and contractual, cannot accrue interest in any way, since this would transform the legal concept of the fund into a loan, something that is usually reserved for financial and credit institutions and which is subject to quite different authorisation and regulatory enforcement processes.

Moreover, in addition to the financial benefit, the beneficiary of the litigation fund also has the advantage of not having to return any sum in the event of losing the case, since the agreement assigning the chose in action expressly states that the Funder also assumes the risk of losing the case – if no further action is to be taken –, also referred to as a “non-recourse” assignment.

Litigation funding in relation to other judicial concepts: legal standing

Having ascertained generally how Litigation Funding works, we must address the question of how it relates to the Italian legal concepts of legal standing, procedural substitution and substitution in relation to a disputed right.

The legal principle of legal standing – legitimatio ad causam – establishes the possibility for a party to assert the existence of their own right and not the relative ownership of said right.

It will then be for the judge to confirm or refute the existence of such a right on the part of the party with “standing”.

This follows from the provisions of Art. 75 of the Italian Code of Civil Procedure, under the heading of Legal Capacity, which reads as follows:

“Persons who are able to freely exercise the rights asserted therein are capable of standing in court.” Anyone, therefore, can assert a right in court if they have direct capacity or, in the case of legal persons, through their legal representative and, naturally, by proving the facts in support of said right, pursuant to Art. 2697 of the Italian Civil Code, under the heading “Burden of Proof”.

Litigation Funding and procedural substitution

Having established the above-mentioned concept, it is worth dwelling briefly on another aspect.

Any parties wishing to avail themselves of Litigation Funding must deal with the delicate issue of Procedural Substitution, pursuant to Art. 81 of the Code of Civil Procedure, which very firmly states that

Except in cases expressly provided for by law, no one may assert in their own name a right of another person.

Procedural substitution represents an exception to this principle since it dissociates ownership of the action (legitimatio ad causam) from ownership of the substantive situation averred in the proceedings, and for this very reason is permitted only in specific cases.

Litigation funding in relation to other judicial concepts: assignment agreement

This rightly raises the question of whether the Assignment Agreement, through the acquisition of the chose in action by the Litigation Funder, may constitute such a case.

The services provided by the Funder, i.e., the entity supporting the person with standing to sue, are unrelated to legal assistance and do not entail subrogation of the same in asserting their rights. Instead, the Funder covers the costs of litigation and, to a lesser extent, in the case of LexCapital, can help procure a lawyer ( a Super Specialist), in the capacity of a professional contact rather than offering direct assistance.

It is, conceivably, the personification of the fund as a source of aid, which does not replace the party with standing, but rather combines a series of activities aimed at guaranteeing easy access to justice, which for many is increasingly difficult and cumbersome.

However, the term “assignment”of the chose in action brings us back to the question of whether a party, when ceding the right to sue (legitimatio ad causam), in the fullness of their faculties, to another party, cedes the right itself to sue, while assuming the financial risk of losing the litigation costs of the party and of the counterparty.

A persuasive answer to this question is that the Funder, through the assignment agreement, formally substitutes the party in the legal proceedings but not with regard to ownership of the right claimed in the proceedings, the judgment of which, as stated above, has legal effect on the substituted party.

More specifically, the law provides that the effects of the judgment shall always apply to the “substituted” party, also incorporating the obligatory joinder of parties (Art. 102 of the Italian Code of Civil Procedure. “If the judgment must be pronounced with respect to several parties, they must be plaintiffs or defendants in the same proceedings”) in which the effects of the judgment apply to the substituted party, while the financial effects apply to the substitute, owing to the assignment agreement under which the substitute assumes the financial risk of losing the case, with respect to the costs of the proceedings.

Litigation funding: an important distinction

This concept should not be confused with actions brought under subrogation under Art. 2900 of the Civil Code in which a creditor may exercise the rights of others to protect its own interest.

In this case, the Funder does not seek to assert its own interest, which will be limited, in the event of a victory in court or an out-of-court settlement, only to the retention of an agreed percentage of the value of the lawsuit (or the “petitum”, i.e., the economic value of the Res Litigiosa and, therefore, the amount required as an economic return from the infringement of the right).

In other circumstances, the question arises as to whether the Funder, through the assignment agreement, is acting as a substitute under a particular title in a specific claim or legal relationship.

Art. 111 of the Code of Civil Procedure gives us a first indication:

If, in the course of the proceedings, the disputed right is transferred by an act between living persons under a particular title, the proceedings shall continue between the original parties”.

In the case of succession by particular title, the transferor (assignor) brings or defends actions in court not as the original party entitled to act but as a procedural substitute (Art. 81 of the Code of Civil Procedure), continuing to be a party to the proceedings for a right they no longer own.

Also in this case, the Fund does not take over the disputed right, which is the crucial point on which a party asserts their rights or ascertains ownership thereof, but takes over in the action to protect or ascertain the disputed right, keeping it in the hands of the assignor.

Difference between the chose in action and the disputed right

Finally, the question arises of whether the chose in action and the disputed right are the same thing.

The answer is a reassuringly simple: no.

Chose in Action is the right to take legal action to protect one’s rights (a hybrid form of legitimatio ad causam and legal assistance), which is assigned in return for financial support (for the litigation costs, etc.).

The Disputed Right is instead the subject matter on which a grievance lies: is a certain property mine or not? The Disputed Right concerns understanding the proper ownership of a right and, in the present case, understanding whether or not a person is actually entitled to compensation for damages due to unlawful conduct.

According to Art. 81 of the Code of Civil Procedure, ownership of a right, by virtue of an agreement assigning the Chose in Action, cannot be acquired in these cases unless ownership of the right itself is transferred, by assignment or sale, before or during the proceedings, only in the cases specifically provided for, as mentioned above in Art. 111 of the Code of Civil Procedure.

Due to the current legislative vacuum, agreements concluded with a Litigation Funder remain atypical contracts under Italian law, regarding which the European Parliament expressed its views in its Resolution of 13 September 2022 with recommendations to the Commission on Responsible Private Litigation Funding (2020/2130 (INL)).

The fund is a key element in the assignment agreement and it is to be expected that the Court will intervene by applying the rules of legal standing, transferring this standing to a third party but ensuring the main legal effects of the judgment are applied to the substituted party, while the economic effects, deriving from the agreement between private parties, are applied to the “substitute”, by virtue of the agreement between the parties, pursuant to Article 81 of the Code of Civil Procedure.

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THE RIGHT TO BE FORGOTTEN AND THE RIGHT TO FREEDOM OF INFORMATION: BETWEEN THE COURT OF CASSATION AND THE COURT OF JUSTICE

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The right to be forgotten is the result of a long jurisprudential development and is today expressly regulated by EU Regulation no. 679/2016 on personal data protection (the so-called GDPR) under Art. 17, which provides for the data subject's right to obtain the erasure of personal data concerning them, with the corresponding obligation arising for the data controller. Among the most significant exceptions to this right, which entails a delicate balance of conflicting interests, is the right to freedom of information. The recent judgment of the Supreme Court of Cassation of November 24, 2022, no. 34658, offers an opportunity to analyze how the balancing between constitutionally protected rights operates in practice, as well as the territorial boundaries of the measures issued by the Data Protection Authority (Garante per la protezione dei dati personali). Indeed, the issue to be resolved in the case at hand consists of the possibility for the Authority to issue a de-indexing order of a web address (meaning, the non-direct accessibility of the web address via search engines external to the archive where the content is located) with extraterritorial effectiveness, balancing the data subject's right to be forgotten with the search engine operator's right to freedom of information.

The Right to be Forgotten and the Case at Hand

The matter stems from the infringement of the right to be forgotten due to the "continued dissemination on the web of outdated news concerning a judicial affair in which [the data subject] had been involved, which concluded with a dismissal decree (decreto di archiviazione) by the judge for preliminary investigations due to the groundlessness of the criminal offense notice." By an order issued on October 26, 2017, the Data Protection Authority had ordered the removal of the URLs (Uniform Resource Locator), or web addresses, that still referred to it. The peculiarity of the ruling concerns the territorial effectiveness of the order, which extended not only to national and European versions of the search engine but also to non-European versions, taking into account the applicant's interests even outside the national territory. However, the search engine operator challenged the measure before the Tribunal of Milan, which, with a judgment dated September 21, 2020, accepted the operator's claims on the grounds that the erasure order was also extended to non-European versions. According to the lower court judge, in application of the now-repealed rules of Legislative Decree no. 196/2003, which transposed Directive 95/46/EC on personal data protection, the Privacy Authority lacked jurisdiction to issue measures with extraterritorial effectiveness, and a proper balancing between the applicant's right to be forgotten and the right to freedom of information had not been carried out. The Authority, however, lodged an appeal before the Supreme Court of Cassation because "the challenged judgment... had incorrectly identified the criterion on the basis of which the Authority should have carried out the necessary balancing of interests, assuming that extraterritorial de-indexing should have been measured against the distinct legal frameworks existing in non-EU countries where the national rule with extraterritorial effects would allow the Authority's order to be enforced."

Case Law Precedents on the Right to be Forgotten and the Balancing with the Right to Freedom of Information

Before analyzing the issue of the territorial effectiveness of the Authority's order, the Court reviews the most relevant rulings of national and European case law concerning the right to be forgotten and the right to freedom of information, with particular regard to the de-indexing procedure. The following points can thus be summarized:

  • It is necessary to balance the interests of the parties involved, as de-indexing cannot be granted solely based on the existence of the conditions for its execution (Cass. no. 3952 of February 8, 2022);

  • The balancing test operates differently depending on whether the data subject is a public figure or not; indeed, only in the latter case does the right to freedom of information, protected by Art. 21 of the Constitution, tend to yield before the individual's right not to be linked to outdated news without time limits, as it would otherwise prejudice the right to personal identity and the right to privacy (Cass. no. 15160 of May 31, 2021; Cass. no. 9147 of May 19, 2020; and Cass., Joint Sections, no. 19681 of July 22, 2019).

These principles were likewise confirmed by the case law of the European Court of Justice, with the judgment of May 13, 2014, C-131/12, in application of Directive 95/46/EC. In particular, the Court confirmed that "the activity of a search engine consisting in finding information published or placed on the Internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to Internet users according to a particular order of preference, must be classified as processing of personal data." Furthermore, the fundamental rights deriving from Articles 7 and 8 of the Charter of Fundamental Rights of the European Union allow the data subject to demand that the information no longer be made accessible to the public, except where such an individual plays a specific public role.

The Admissibility of an Extraterritorial Global Delisting or Global Removal Order Against a Search Engine Operator

Having thus outlined the functioning of the balance between the right to be forgotten and the right to freedom of information, the Supreme Court of Cassation addresses the problem of the admissibility of the extraterritorial order issued by the Privacy Authority, starting primarily from the European Court of Justice judgment known as the "CNIL" case of September 24, 2019. According to the Court of Justice of the European Union, "while EU law does not currently require that the de-referencing granted should apply to all versions of the search engine, as noted in paragraph 64 of this judgment, it also does not prohibit it. Therefore, a supervisory authority or a judicial authority of a Member State remains competent to carry out, in accordance with national standards of protection of fundamental rights, a balancing exercise between, on the one hand, the data subject’s right to privacy and the protection of their personal data and, on the other hand, the right to freedom of information, and, at the close of that exercise, to require, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine."

With this clarified, the Court of Cassation confirms that "the right to the protection of one's personal data and its constitutional foundation do not tolerate territorial limitations to the expression of its sphere of protection, all the more so since in this case such a right overlaps and goes hand in hand with the rights to identity, privacy, and contextualization of information"; this is due to the close link between the protection of rights over personal data and the fundamental rights of the person guaranteed by the Constitution. The balancing exercise, therefore, must not be based on distinct existing legal frameworks, as asserted by the lower court judge, but can only refer to national and European principles, with the sole consequence that, should a conflict arise with a non-European legal system, the latter will simply not proceed to recognize the order issued by the Authority. In conclusion, the judgment of the Supreme Court of Cassation reviewed here adds to the complex jurisprudential framework that has developed regarding the right to be forgotten, confirming the legitimacy of extraterritorial global delisting or removal orders.

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Public procurement under the Meloni Government: the reform

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The Council of Ministers has approved a decree reforming the Public Procurement Code (Codice dei contratti pubblici). At the moment, the text has been approved in a preliminary review, and the procedure will have to go through several steps before being definitively endorsed and published in the Official Gazette.

Public procurement reform under the Meloni Government: two fundamental principles

Prime Minister Giorgia Meloni presented it as:

"an organic, balanced, and visionary measure, the result of qualified and in-depth work, which allows for the simplification of procedures and guarantees faster timeframes. It will also represent a driving force for the relaunch of economic growth and the infrastructural modernization of the nation."

It is, therefore, a measure aimed at streamlining and accelerating the entire public procurement system, simplifying its practices and speeding up bureaucratic steps. The entire philosophy and project perspectives can be summarized into two fundamental principles:

  • Principle of the outcome (Principio del risultato): which considers the public interest as primary, and proposes all possible facilitations and simplifications so that public contracts are more fluid and streamlined, guaranteeing quality and speed on one hand, and competition, legality, and transparency on the other.

  • The principle of trust (Principio della fiducia): is another principle upon which this reform is based, and it materializes in a character of transparency, legitimacy, and fairness on the part of the public administration and economic officials.

Public procurement reform under the Meloni Government: the role of digitalization

The driving force behind all the mechanisms of the reform, and also the main core coordinating its apparatuses, is undoubtedly digitalization. This is one of the fundamental objectives of the Italian political agenda, the relevance of which was highlighted by all the bureaucratic and administrative gaps recorded during the Covid-19 pandemic. What the decree attempts to build is a "digital procurement ecosystem," whose main components are:

  • The National Database of Public Contracts (Banca dati nazionale dei contratti pubblici);

  • The Virtual File of the Economic Operator (Fascicolo virtuale dell’operatore economico);

  • The use of automated systems for the management of public contracts;

  • The use of digital procurement platforms;

  • The total digitalization of all access systems to procedures concerning public contracts.

All citizens are granted the possibility, within the limits dictated by current regulations, to access tender documentation. This is achieved through the institution of generalized civic access (accesso civico generalizzato).

Streamlined procedures

Among the most interesting measures of the Meloni decree, we can observe:

  • An ad hoc planning of what are considered priority infrastructures, which will be included in the Economic and Financial Document (DEF), following consultation between the State and the regions.

  • The reduction and streamlining of design timeframes, as well as the establishment, by the Supreme Council of Public Works (Consiglio superiore dei lavori pubblici), of a special committee for the evaluation and examination of these projects.

  • A parallel evaluation of archaeological interest.

  • Certain contracts may feature executive design as their object: this is based on a submitted and then appropriately approved technical feasibility project. All contracts concerning ordinary maintenance works will be excluded from this form.

  • The thresholds for direct awards and negotiated procedures from the so-called "Covid-19 Simplifications Decree" continue to be adopted.

Other measures provided for by the Reform

Other measures are undertaken with a view to a further simplification of the public procurement system.

  • The figure of the "general contractor" is reintroduced, which aims at achieving an administrative outcome by leveraging specific professional and specialist services in exchange for a fee.

  • Facilitations are provided for the participation of institutional investors in tenders for project certification.

  • The category of so-called "special sectors" is identified, based on the essentiality of the services provided (energy, water, transport, etc.).

  • There is the elimination of the prohibition on so-called "subcontracting in cascade" (subappalto a cascata) – pursuant to Art. 105, paragraph 19 of Legislative Decree no. 50/2016, which stated: "The performance of services entrusted under subcontracting cannot form the object of further subcontracting." This ban was originally born to curb organized crime infiltration, but had already been the subject of debate at the EU level in infringement procedure no. 2018/2273 by the European Commission, which threatened sanctions against Italy regarding the non-application of EU procurement regulations.

  • As for concessions without a tender, there is an obligation to subcontract a portion between 50% and 60% of the works, except for the special sectors.

  • In the event of judicial liquidation of the economic operator following the award, the natural termination of the contract is not provided for. Subject to authorization by the delegated judge, the contract may be concluded with a trustee authorized to operate the business.

Disputes

Regarding disputes, the powers of the ANAC (National Anti-Corruption Authority) regarding supervisory and sanctioning functions are strengthened. The judge may also request compensation actions against operators who, through unlawful actions, have conspired to distort and mislead the outcome of the tender.

The image is taken from the photographic archive of the ANSA agency, author Claudio Ferri.

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THE CARTABIA REFORM OF CIVIL PROCEDURE: FOCUS ON THE “OFFICE FOR THE TRIAL”

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Edited by: Dr. Eleonora Ebau, Research Fellow, Department of Law, UniTo.

Definition and Regulatory Framework of the Office for the Trial

The Office for the Trial (Ufficio per il Processo – UPP) is an organizational structure (provided for by Article 16-octies of Decree-Law 179/2012) operating within Tribunals and Courts of Appeal with the aim of ensuring the reasonable duration of trials through the innovation of organizational models, the increase of human resources, and a more efficient use of information and communication technologies. The implementation of the UPP in Italy stems from the intersection of two primary requirements. On the one hand, in light of numerous and positive experiences gained in several foreign countries (United Kingdom, USA, France, and Spain), the need for judges to have a support team in carrying out judicial activities, as well as activities complementary to the latter, was recognized in Italy as well. On the other hand, the need emerged to employ competent personnel for the application of new tools resulting from technological innovation, as well as to rethink the organization of judicial work. The establishment of the UPP as a body composed of judicial assistants aiding the judge, along with the reorganization of both human and material resources "complementary" to the judicial offices, are placed within this context. The recent Cartabia Reform ordered the mandatory establishment of the UPP in all Italian judicial offices, providing a complete and systematic regulation thereof and extending this tool to the Supreme Court of Cassation, the General Prosecutor's Office at the Supreme Court of Cassation, as well as to the lower courts of the criminal sector.

Implementation of the UPP with the Cartabia Reform

In order to implement the UPP, the Cartabia Reform intervened on various fronts, involving several entities, including those external to the Ministry of Justice. First of all, with the funds allocated to Italy under the NRRP, 8,250 UPP staff members were hired on a fixed-term basis and entered into service starting from February 2022, forming the staff of the "new UPPs" in the various judicial offices. Furthermore, through a 2021 ministerial call for tenders, Italian public universities were called upon to collaborate in order to foster the full functionality of the UPPs throughout the national territory. The university projects resulting from this call cover a timeframe ranging approximately from April 2022 to September 2023. Specifically, universities intervened not only through the training of young jurists who will potentially fill the role of UPP staff members, but also through the design of those innovations – both IT and organizational – necessary to make the justice system more efficient.

Ministerial Call: Lines of Action for the Implementation of the Office for the Trial

The ministerial call provided well-defined lines of action for the universities. Specifically, Line 1 concerns the "Definition of operational modules for the constitution and implementation of the Office for the Trial," meaning the survey of already existing UPPs in order to detect their composition, functioning, organizational modules, potential critical elements, and strengths. Line 2 provides for "the identification of models for the management of incoming flows and backlogs at the judicial offices." In other words, this line of intervention aims to outline work methodologies that allow for the disposal of backlogs and prevent their formation. Within this line, not only jurists but also business management experts and IT specialists are involved, with the purpose of employing new management models, as well as the application of artificial intelligence and the creation of new databases. Line 3 then concerns "the activation and experimentation of models and plans relating to the previous actions." Finally, through Line 4, universities deal with the "Redefinition of training models and the consolidation of relations between stakeholders." In substance, therefore, universities must provide for new experiential teaching methodologies involving the learning of soft and cross-disciplinary skills for students, including through collaborative projects between universities and judicial offices.

Multiple Bodies Involved in the Constitution and Implementation of the Office for the Trial

From the framework outlined so far, it appears clear how the Cartabia Reform, in providing a more complete and systematic regulation of the UPP, actively involved not only the Ministry of Justice but also individual judicial offices and universities, in order to create a synergy among the various stakeholders throughout the national territory.

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FTX Bankruptcy: a tornado in the cryptocurrency world

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With the collapse of FTX – the most prominent trading platform – the cryptocurrency sector suffers a major shock, causing one of the main pillars on which the world of online currencies relied to fall. This event risks triggering a tragic domino effect across the entire industry. By many, the news has been compared to the Lehman Brothers affair, which sparked the subprime mortgage financial crisis in 2008. The effects are devastating, but let's try to understand more about it.

Sam Bankman-Fried: the downward spiral of cryptocurrencies

Just a few hours from the communication of the news were enough for Bitcoin and Ethereum, the leading cryptocurrencies in the market, to lose 15% and 24% of their value. The news of the collapse saw the immediate withdrawal of one of FTX's main external investors, Sequoia Capital, which had invested an asset of approximately 213.5 million dollars in the platform. A stake second only to Venture Capital, whose value was estimated at 425 million. Already on November 9, Sequoia Capital's shares were marked at 0 dollars; then, two days later, FTX and FTX US filed for bankruptcy, resorting, in the United States, to Chapter 11: a structured bankruptcy aimed at allowing the company to continue operating even during negotiations with creditors. Following the collapse, the resignation of Chief Executive Officer Sam Bankman-Fried followed.

Sam Bankman-Fried: the rise of FTX and cryptocurrencies

Sam Bankman-Fried was no stranger to intricate and controversial situations regarding his trading activities. Of course, no one would have imagined such a dramatic decline, given that Sam Bankman-Fried, with a net worth of around 32 billion dollars, appeared in the top 100 of the world's richest men released by Forbes. A MIT graduate in mathematics and physics, Bankman entered the world of cryptocurrencies almost by accident, although he had long held a passion for trading. In 2019, he founded FTX, selling a stake to Binance for 70 million dollars.

FTX Collapse: controversies and successes of the cryptocurrency platform

The history of the platform is, however, marked by major controversies. FTX had repeatedly alerted the SEC, the oversight and supervision agency of the American stock exchange, which has always called on the US government for rigid and severe regulation of financial markets. The FTX platform engaged in financial derivatives trading, even though such activities were not permitted by the United States government. To bypass this problem, Bankman chose Hong Kong and the Bahamas as headquarters. Thanks to connections and generous funding toward the Democratic Party, he was able to work undisturbed, avoiding – at least until the Biden administration – regulatory measures regarding cryptocurrencies.

FTX Collapse: The Binance tweet ignited the fuse against cryptocurrencies

Igniting the fuse was a tweet by Binance CEO Changpeng Zhao, in which the liquidity of FTX, with which Binance shared a heavily weighted stake of 500 million dollars, was called into question.

"Due to recent revelations that have came to light, we have decided to liquidate any remaining FTT on our books"

In fact, already on November 2, an online magazine raised questions about the solvency of FTX, in the event that a collapse of FTT were to occur. The CEO justified the decision in another Tweet, where he recalled the failure of Luna, the token of the Terra ecosystem:

"Liquidating our FTT is just post-exit risk management, learning from LUNA"

The U-turn by Binance

The CEO of Binance was not entirely aware of the earthquake he would generate: a stringent mechanism of deposit withdrawals by many clients. Proof of this is the fact that, immediately afterward, Zhao offered to take over the company, saving it from a situation by then out of control. The decision, however, suffered a further U-turn, declared by a decisive tweet:

"The issues are beyond our control or ability to help"

FTX Collapse: controversies in cryptocurrency trading

Arousing suspicions about the reasons for the collapse would be not only the words of former US Treasury Secretary Larry Summers, who compares the affair to the Enron scandal, but also some far-fetched stories regarding a possible hacking of the platform.

"FTX has been hacked; funds appear to be gone. FTX apps are malware, delete them. Do not go to the FTX site: it could be a trojan"

These were the words reported by an administrator of the company on his Telegram channel. In fact, an analysis by Elliptic, an entity that tracks cryptocurrency traffic, analyzed a total of 663 million dollars diverted to other destinations. Of this figure, 477 million were reportedly stolen, while the rest were secured in FTX deposits. The loot includes various cryptocurrencies – Ethereum, Avalanche, Binance Smart, and Solana – later converted into stable online currencies through decentralized exchanges. A very widespread technique among hackers, which would make the story appear plausible. What fails to convince, however, is the timing within 24 hours following the bankruptcy filing: it hints at an attempt by top management to salvage what remains before liquidation.

Class Action on the horizon

The victims of FTX – news from two days ago – are preparing legal action and, unified in a rapidly expanding group of over 50 members called FTX CLASS ACTION LAWSUIT (CHAT), fearing that the official Telegram channel might face closure, are organizing outside of exchange outlets. AJ, the creator of the group, said a lawyer was still in the process of being appointed, but "they should finish in a couple of days." In order to gather information from creditors, the Group has created a Google Form titled Users affected by the bankruptcy of FTX.

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Derivatives of Italian local authorities: substantive and procedural profiles

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Edited by: Dr. Eleonora Ebau, Research Fellow, Department of Law, UniTo.

Not infrequently, Italian municipalities and other local authorities have entered into financial derivative contracts with foreign banks, giving rise to a heated debate from both a substantive and procedural standpoint. On the substantive profiles of these contracts, the Commercial Court of London recently ruled in the litigation between Banca Intesa and Dexia and the Municipality of Venice.[1] The English Court declared the Venetian derivative null and void as speculative, aligning itself with the analysis carried out by the Joint Sections (Sezioni Unite) of the Supreme Court of Cassation in the case of the Municipality of Cattolica in the well-known judgment no. 8870 of 2020.[2] In that judgment, the Joint Sections had, among other things, sanctioned the prohibition for Italian entities to enter into speculative derivatives. Therefore, following the ruling of the London court, the prohibition on entering into speculative derivatives also applies to contracts governed by English law,[3] due to a lack of contractual capacity of the public entity (lack of capacity), which renders the contracts themselves null and void.[4] Regarding the procedural profiles, however, it should be noted that standard international contracts – drafted by the International Swaps and Derivatives Association Inc. (ISDA) and commonly signed by local authorities and foreign banks – provide for the jurisdiction of the English courts for all disputes directly or indirectly connected to the derivative.[5] The question that arises, therefore, is whether in active lawsuits brought by the Public Administration against a foreign legal entity, the Italian forum or the contractually agreed forum prevails, taking into account also the United Kingdom's exit from the European Union with Brexit.

Derivatives of Italian Local Authorities: Two Situations

Prelimonarily, it is necessary to distinguish between two different situations, namely whether the parties decide to confer exclusive jurisdiction or not to the English courts. In the event that exclusive jurisdiction is not conferred upon the English judge, the issue is easily resolvable. In such a case, the Public Administration will be able to bring its action also within the national territory, taking into account the internal rules of competence on the state forum (foro erariale) provided for under Art. 25 of the Italian Code of Civil Procedure (c.p.c.).[6] Conversely, if the parties have provided for an English forum selection clause as exclusive, the question arises as to whether the Italian judge can nevertheless assert their jurisdiction over the case.

Brexit

Undoubtedly, prior to the United Kingdom's exit from the European Union, a negative answer would have been given to this question. Indeed, pursuant to Art. 25 of the Brussels I-bis Regulation, the contractually provided exclusive forum would have prevailed, regardless of the domicile of the parties involved.[7] However, with the advent of Brexit, this legislative instrument no longer applies to all proceedings initiated after January 1, 2021. Precisely to fill this regulatory gap, the United Kingdom acceded to the Hague Convention of 30 June 2005 on Choice of Court Agreements as of January 1, 2021. This Convention provides that the courts of contracting states shall give effect to exclusive jurisdiction clauses in favor of other signatory states and that such courts shall recognize and enforce judgments rendered pursuant to such clauses. The contracting states include the European Union on behalf of all Member States, and therefore also Italy. Furthermore, it is recalled that Art. 2(5) of the Convention itself provides that:

“The mere fact that a State, including a government, a governmental agency or any person acting for a State, is a party to proceedings shall not exclude the proceedings from the scope of this Convention.”

Therefore, in the post-Brexit scenario, the Italian judge will have to apply the Hague Convention and decline their jurisdiction in favor of the English courts in the case of disputes brought by local authorities connected to financial derivative contracts that feature exclusive jurisdiction clauses in favor of the English judge.

Conclusions

In conclusion, Italian Public Administrations will undoubtedly be able to turn to the Italian judge in the case of non-exclusive choice of court clauses; otherwise, the contractually agreed English forum will prevail over the Italian one.

[1] Banca Intesa San Paolo and Dexia Crediop v Comune di Venezia [2022] EWHC 2586 (Comm), Judgment of October 14, 2022. [2] Gatto P., I derivati degli enti locali italiani sono nulli anche per il diritto inglese, available on the website Altalex. [3] Ibid. [4] Ibid. [5] Clause 13(b) ISDA model contract: “Jurisdiction. With respect to any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement (“Proceedings”), each party irrevocably:― (i) submits:― (1) if this Agreement is expressed to be governed by English law, to (A) the non-exclusive jurisdiction of the English courts if the Proceedings do not involve a Convention Court and (B) the exclusive jurisdiction of the English courts if the Proceedings do involve a Convention Court; […]” [6] Art. 25 c.p.c.: “For lawsuits in which a State Administration is a party, the judge of the place where the office of the State Legal Advisory Service (Avvocatura dello Stato) is based, in whose district the judge who would be competent according to ordinary rules is located, has jurisdiction in accordance with special laws on the representation and defense of the State in court and in the cases provided therein. When the administration is the defendant, such district is determined with regard to the judge of the place where the obligation arose or must be performed, or where the movable or immovable property subject to the claim is located.” [7] Art. 25 Brussels I-bis Regulation: “If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.”

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Statute of limitations on liability actions against corporate bodies by legitimate stakeholders

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Edited by: Dr. Francesca Bichiri, Research Fellow, Department of Law, UniTo.

Any discussion regarding the statute of limitations in corporate law must necessarily begin with the analysis of Art. 2949 of the Italian Civil Code (c.c.), which provides for a short limitation period of five years for rights deriving from corporate relations and for liability actions brought by corporate creditors against directors. The rationale behind the short statute of limitations in corporate law is rooted in the requirements of speed and promptness typical of commercial transactions, which are poorly suited to the ordinary ten-year limitation period governing relationships between private individuals (which was thirty years in the Civil Code of 1864 and ten years under Art. 917 of the Commercial Code of 1882). However, the scope of application of this provision must be specified from both a subjective and an objective perspective. As to the subjective profile, it is maintained that limiting the five-year limitation period to companies registered in the register of companies must be interpreted as excluding the extension of Art. 2949 c.c. to simple partnerships (società semplici), despite their registration in the special section of the register (Cass., February 16, 2012, no. 2286). From an objective perspective, while the application of the provision to liability actions brought by corporate creditors against directors raises no doubts due to the express statutory provision to that effect, the generic reference to "rights deriving from corporate relations" poses greater difficulties. Legal doctrine tends to define these as all those relationships that would not arise if the entity lacked corporate status and structure, or if it were an individual transaction. Prior to the 2003 reform, this provision was referred to in order to identify the limitation period for corporate liability actions brought by the company for damages caused by its directors; the dies a quo for the running of this period was fixed at the time of cessation of office, taking into account the operation of the tolling (suspension) mechanism for actions brought by legal entities against their own directors pursuant to Art. 2941, no. 7, c.c.

The Doctrine of the Limitation Period for Liability Actions: The Regulatory Framework

Today, Art. 2393, paragraph 4, c.c. expressly provides for a five-year limitation period, and the most significant interpretative crux essentially concerns the dies a quo for the running of this period. In particular, the cited provision explicitly dictates that the limitation period runs from the moment of cessation of office. According to some, this date should mark the beginning of the limitation period even if the harmful effects are not yet perceptible to the injured party, thereby aiming to avoid exposing directors to an open-ended (sine die) liability for damages, independent of the legal possibility of bringing the action (evidently derogating from Art. 2935 c.c.). However, the case law of the Supreme Court of Cassation has not ruled in this sense; rather, by resorting to the discoverability theory (tesi della conoscibilità), it has ruled that "the limitation period runs from the moment when the damage becomes objectively perceptible from the outside, meaning it has manifested itself in the financial sphere of the company, it being irrelevant for this purpose that the liability action is of a contractual nature pursuant to Art. 2392 c.c. by virtue of the fiduciary relationship existing with the director" (Cass., 04.12.2015, no. 24715). Art. 2394, paragraph 2, on the other hand, establishes that the liability action available to corporate creditors may be brought when "the corporate assets prove insufficient to satisfy their claims" (naturally, within the five-year limitation period, pursuant to Art. 2949, paragraph 2, c.c.).

The Role of Case Law in the Limitation Period for Liability Actions

The prevailing and settled orientation of the case law applies the discoverability theory in this scenario as well, affirming that "the related liability action can be brought by corporate creditors... from the moment when the insufficiency of corporate assets to satisfy claims emerges from any fact that can be known, even without a direct audit of the company's accounts, it not being required for this purpose that it emerge from a financial statement approved by the shareholders' meeting." Normally, this moment is presumptively deemed to coincide with the opening of insolvency proceedings. The burden of overcoming this iuris tantum (rebuttable) presumption rests on the director if they intend to prove that the insufficiency of corporate assets could have manifested itself at an earlier time (see, among others, Cass., 19/06/2019, no. 16505). Pursuant to Art. 2395 c.c., shareholders (and third parties) who are directly damaged by an act of the directors may also bring a liability action against them, provided that the damage is not a mere reflective consequence of the asset reduction suffered by the company due to management operations. This action is time-barred after five years "from the fulfillment of the act that prejudiced the shareholder." It is believed that this rule must be read in conjunction with Art. 2497 c.c., so that the limitation period runs not from the moment the unlawful conduct occurred (whether it concerns contractual or tortious liability), but from the moment the harmful event materialized for the shareholder (or third party) and, if at a later stage, from when it became concretely perceptible from the outside (on this point, see Tribunal of Rome, 15/02/2016; Tribunal of Milan, 30/04/2001).

Specific Cases of Statutory Extension

Furthermore, the law extends the standing to exercise the various liability actions mentioned here, previously to the bankruptcy trustee under Art. 146 of the Bankruptcy Law and Art. 2394-bis c.c., and today to the judicial liquidator under Art. 255 of the Crisis and Insolvency Code (Codice della Crisi). Although the action brought by the liquidator can be described as unified, the statute of limitations runs differently, in accordance with the moments identified above, depending on the specific liability asserted (Tribunal of Bologna, 12/07/2021, no. 1662). In compliance with the approach favoring "discoverability," the Court of Cassation has recently ruled on the running of the limitation period regarding liability actions brought against statutory auditors (sindaci), which, similarly to those against directors, can arise vis-à-vis the company, corporate creditors, shareholders, and third parties. On this point, it is necessary to distinguish between a breach of duties falling within the oversight activity exercised over directors (concurrent liability) and the separate, additional obligations assigned to auditors independent of the latter (exclusive liability). The latter hypothesis exists, for example, for breaches of the duty of truthfulness in certifications and professional secrecy, as well as whenever the law requires the board of statutory auditors to act and it remains inactive, as occurs for procedures in the event of the termination of directors (Articles 2385 and 2386 c.c.). Concurrent liability, conversely, takes the form of joint and several liability for culpa in vigilando (negligence in supervision), which does not arise from the mere fact of damage inflicted on the company by the management organ, but rather from having failed to exercise supervisory duties according to professional diligence standards, which, if respected, could have prevented the harmful event. These elements of liability must therefore be demonstrated by the party bringing the action, since otherwise joint and several liability cannot rest upon the statutory auditors for damage caused by the directors. Art. 2407 c.c. expressly provides for this distinction and, at the same time, extends the applicability of the provisions examined above to statutory auditors, insofar as they are compatible. In this regard, a recent ruling by the Court of Cassation is particularly interesting, clarifying that "with respect to the limitation period for liability actions brought by corporate creditors pursuant to Art. 2394 c.c., the financial statement constitutes, by virtue of its specific function, the primary informative document on the company's status, not only towards shareholders, but also towards creditors and third parties in general; hence, a financial statement showing a profit or break-even is capable of offering reassuring and reliable information. When, subsequently, despite the statutory auditors' report to the financial statements highlighting the inadequacy of the valuation of certain items, the shareholders' meeting nevertheless resolves upon the distribution of profits to shareholders pursuant to Art. 2433 c.c. without objections at that venue by the corporate management and control bodies, the capability or lack thereof of said auditors' report to inherently supplement the element of objective discoverability for creditors regarding the falsity of the results certified by the corporate financial statements remains a question of fact, reserved for the judge of the merits" (Cass., 5/9/2018, no. 21662).

Limitation Period for Liability Actions: The Running of the Term

With respect to the analysis proposed regarding the running of the limitation period in liability actions, it must be recalled that the dies a quo operates differently within the internal relations between directors and statutory auditors. In fact, it is possible that the damage caused to the company, the shareholder, and the creditors is actually attributable to multiple directors, thereby resulting in a scenario of joint and several liability under Art. 2392 c.c. Consequently, if one of the directors were called upon to pay the entire amount, they could exercise a right of recourse (azione di regresso) against the other board members. The same applies in the hypothesis where a succeeding director, in breach of their duties, failed to intervene to remedy the damages caused by the previous management and was therefore held liable for damages caused to legitimate stakeholders. Indeed, with reference to corporate liability actions against directors, it has been observed that they can "concern both cases involving directors who held office simultaneously, as well as hypotheses where they succeeded each other in the management of the company. In this latter case, however, as... with reference to the more general hypothesis of joint and several liability provided for by Art. 2055 c.c., it is required that the harmful event be unique. The uniqueness of the harmful event required by Art. 2055 c.c. for the legitimate assertion of joint and several liability among the perpetrators of the tort must be understood not in an absolute sense, but in a relative sense toward the injured party; therefore, this form of liability arises even if the harmful event resulted from multiple actions or omissions, intentional or negligent, constituting distinct and even different unlawful acts, provided that the single actions or omissions efficiently contributed to the production of the damage" (Cass., 22/04/2009, no. 9619). To the joint and several bond of the directors, one must add that of the statutory auditors' liability for the case of culpa in vigilando examined above, just as the liability of individual members of the board of statutory auditors could be joint and several for breaches of obligations directly attributable to them (Cass., 14/12/2015, no. 25178), which can only be overcome if the dissenting auditor has caused their dissent to be recorded pursuant to Art. 2404, paragraph 4, c.c. In this scenario, the action for recourse could be exercised against the other joint and several co-obligors solely within the limits of their respective liabilities, "expressly requesting such an assessment for the internal allocation of the burden of compensation with the co-responsible parties," whereas unequal causal significance of the conducts is conversely deemed irrelevant in the relations between the tortfeasor and the injured party (Cass., 20/12/2018, no. 32930). Therefore, within the scope of an action for recourse, the limitation period will run from the moment the right can be enforced pursuant to Art. 2935 c.c. and, thus, according to constant case law, from the moment payment was made, since only under this circumstance does the standing to act against joint and several co-debtors arise.

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Ministerial Decree (DM) 147/2022: updates and changes to lawyers’ fees

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The publication in the Official Gazette of Ministerial Decree no. 147 of August 13, 2022, introduces important novelties regarding the determination of fees for legal professionals. In this article, we will focus specifically on the fees designated for lawyers. To navigate the percentages, the decree establishes specific parametric criteria. Ministerial Decree (D.M.) 147/2022 entered into force on October 23, 2022, and therefore applies to all services performed subsequent to this date.

Lawyers and DM 147/2022: an adjustment of previous parametric tables

To assist in quantifying the fees intended for lawyers – and for all legal professions – the decree appends new parametric tables. The goal of these adjustments is to bridge the gaps found in such activities, as well as to modulate new parametric measures in relation to the cost of living. Precisely, this continues the process of renewing the parametric regulations for the legal professions which, until now, had been stuck at DM 37/2018. It is worth noting that the new tables provide for an increase of 4-5%, which is lower than the real or estimated inflation rate.

A push toward dispute conciliation

The main identifiable purpose of the new quantifications launched in the decree is to encourage the smooth conciliation of disputes and legal litigation. To this end, an increase in remuneration is proposed for lawyers in cases of judicial conciliation of the dispute, or during mediation and assisted negotiation (negoziazione assistita).

With the same goal in mind, several deterrent measures have been defined to curb so-called instrumental and frivolous lawsuits:

  • A 75% fee reduction is established in cases of procedural liability pursuant to Art. 96 of the Italian Code of Civil Procedure (c.p.c.).

  • A 50% fee reduction applies where the claim is declared inadmissible, time-barred, or improper.

D.M. 147/2022 also provides for judicial discretion regarding the determination of lawyers' fees. A single percentage of 50% is fixed as a guideline for increases and decreases in the values established by the parametric tables. In the past, maximum judicial fees could be increased by up to 80%. Furthermore, the phrase "as a rule" (di regola) has been removed.

Other novelties of DM 147/2022 for lawyers

Additional elements are defined by DM 147/2022:

  • Hourly Rate Ranges: The definition of the hourly rate takes the form of a range with values between a minimum of 200 and a maximum of 500 euros for each hour or fraction of time exceeding 30 minutes.

  • Succeeding Colleagues: The possibility for a lawyer who takes over from a colleague in the middle of an already initiated lawsuit to be remunerated, including for the case study phase.

  • Public Contracts: When dealing with disputes concerning public contracts, the payout of fees charged to the client must be carried out considering a profit of no less than 10% of the contract value at the moment the economic extent of the client's interest is determined.

Measures concerning the Juvenile Court

Specific measures are put in place by D.M. 147/2022 regarding cases taking place before the Juvenile Court (Tribunale per i minorenni):

  • Fees for lawyers protecting the interests of minors will be measured based on the tables relating to the specific judgments and procedures for which they are appointed from time to time.

  • Before the Juvenile Court, lawyers' fees will be quantified with reference to the criminal case tables, relying on the competent authority if the minor has reached the age of majority.

Specific cases for lawyers under DM 147/2022

The tables refer to specific judicial cases and situations that merit mention:

  • Criminal Law: A maximum percentage of 50% is established as the limit for an increase; however, a new article provides for a 20% increase in fees in the event of particularly severe or urgent defense investigations.

  • Voluntary Jurisdiction: What is indicated in the parameters of Table no. 7 applies to non-contentious voluntary jurisdiction proceedings.

  • Precautionary Appeals: The fee for a precautionary appeal before the Council of State (Consiglio di Stato) is determined with reference to Table 22.

  • Incidental Appeals: Where an incidental appeal is filed, a 20% increase is provided, referencing Tables 21 and 22.

  • Cassation Phase: A 50% increase is provided during the decision-making phase in Cassation if a brief is filed pursuant to Art. 378 c.p.c.

  • Employment Claims: A 50% reduction compared to the parameters established in Table 20-bis applies to proceedings for admission to the statement of liabilities (ammissione al passivo) or for challenging the statement of liabilities concerning employee claims.

  • Bankruptcy Proceedings: The parameters established by Table 12 apply to appeals before the Court of Appeal concerning bankruptcy declarations and other bankruptcy offenses.

  • Successful ADR: With reference to mediation and assisted negotiation proceedings, when the parties reach an agreement, the lawyer's fees relating to the activation and negotiation phases will be increased by 30%.

Out-of-court proceedings (Procedimenti stragiudiziali)

A final note should be made regarding the out-of-court activities mentioned by certain parametric tables:

  • Regarding out-of-court activity, the parameters reported in Table 25 must also be considered for individual phases, based on the matter dealt with.

  • The maximum percentage established for granting increases in the out-of-court phase is fixed at 50% compared to average parameters.

  • For values exceeding 520,000 euros, the fees to be paid for out-of-court activity will be determined by the new tables.

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Assignment of claims in insolvency procedures

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Author: Dr. Francesca Bichiri, Research Fellow at the Department of Law, UniTo. 

Insolvency procedures are arousing increasingly more interest among third party litigation funding companies. It is, no doubt, a particularly appealing area of business for foreign funders and many companies, such as Burford Capital, Omni Bridgeaway, Therium Group Holdings, operate in this sector.

In addition to being a potentially “fruitful” sector for funders interested in the Italian market, it is also a particularly advantageous solution for insolvency procedures. Considering that the risk and costs of litigation are assumed by a third party, on one hand the procedures involving illiquid assets could be included in the legal remedy as a way of reintegrating the estate and, on the other hand, procedures involving liquid assets would not have to detract from the bankruptcy estate to finance the costs of litigation, to the advantage of the procedure and creditors.

An interesting aspect for litigation funders who are drawn to insolvency procedures is surely the assignment of claims. It is important to specify that the assignment of claims differs from the traditional Third Party Litigation Funding model in that, in this case, the assignee does not simply provide the funds to finance the litigation but acquires from the assignor the right subject to dispute.

In any case, it is a means to liquidate assets, as the bankruptcy trustee is tasked with satisfying creditors. Choosing this route brings undeniable advantages to the procedure, because even if the price of the assignment will surely be less than the right acquired in court, the time necessary to liquidate the bankruptcy estate can be slightly reduced, and no part of the resources will have to be spent in litigation costs. Furthermore, the opportunity to complete liquidation procedures quickly will be an incentive for the trustee to prefer the bulk assignment of credits. The advantage for creditors is obvious: this option guarantees the recovery of at least part of their credit in a shorter period of time.

In bankruptcy proceedings, the reference rules authorising such a transaction are Art. 106 (so-called autonomous assignment) and Art. 124(4) (so-called “concordatory” assignment), which, respectively, refer to the assignment of “revocatory actions” and “actions pertaining to the estate”.

The object of the assignment agreement is defined by these rules.

The term “revocatory actions” refers not just to revocatory actions in bankruptcy proceedings pursuant to Art. 67 of the bankruptcy law, but also the “ordinary” revocatory actions envisaged by the Italian Civil Code to which Art. 66 of the bankruptcy law refers, and the actions to obtain a declaration of ineffectiveness referred to in Articles 64 and 65 of the same law. The prevailing opinion is that the assignment would not result in the asset being acquired in the assignee’s estate but only in the right of the assignee to pursue it with an enforcement action, because the revocatory action only leads to the ineffectiveness of the transaction towards creditors, not to the return of the asset in the bankruptcy estate.

On the other hand, the “actions pertaining to the estate” are those that aim to reintegrate the debtor’s assets intended as a generic guarantee for all creditors; therefore, they include not just the revocatory actions but also contractual and extra-contractual liability and damage compensation actions.

The two assignments are different also in terms of procedure.

In the case of “autonomous” assignments, to avoid speculations, the trustee can assign revocatory actions that are part of the bankruptcy proceedings only if judgement is already pending. This condition is met once the defendant has been summoned to appear in relation to a revocatory action.

From a procedural point of view, the fact that proceedings are pending means that following the subrogation in the disputed right as a consequence of the assignment, pursuant to art. 111 of the Italian Code of Civil Procedure, proceedings involving the original parties can continue and the trustee can remain part of the proceedings unless excluded by the intervention of the assignee. In any case, the sentence will have effect on the assignee. Furthermore, the end of the bankruptcy does not preclude claims, as this is prevented by the assignee’s subrogation in the disputed right. However, an interruption pursuant to Art. 300 of the Italian Code of Civil Procedure is possible if the assignee did not take part in the proceedings.

An “agreed” assignment can take place in the event of a liquidation of assets via bankruptcy composition. It requires one or more creditors or a third party to present a proposal for an agreement, which must include the assignment of the action and the specific indication of the object and of the basis of the claim. In this case, it is sufficient for the action to be authorised by the presiding judge at the time of the presentation of the proposal. The proponent may limit the obligations to the creditors admitted to the list of creditors, and to those who have proposed modifications of the list of creditors or made late requests to be admitted to the list.

As this is also a case of subrogation in a disputed right, if proceedings are already pending, the effects on the parties are the same. However, in this case, problems could be caused by the rescission of the agreement pursuant to Art. 137 of the bankruptcy law, or the annulment of the agreement pursuant to Art. 138 of the same law, leading to the reopening of the bankruptcy. The opinion that, also in this case, the trustee subrogates the assignee in the disputed right and the proceedings continue with the involvement of the original parties, until the trustee intervenes to exclude the assignee, seems preferable.

“Autonomous” assignments and “concordatory” assignments are used not only in bankruptcy proceedings but also as part of compulsory administrative liquidation procedures, pursuant to Art. 194 et seq. of the bankruptcy law.

However, while Art. 124 of the bankruptcy law that governs assignments proposed by creditors is expressly recalled by Art. 214 of the same law, the main opinion is that assignments initiated by the trustee are admissible only by means of interpretation, and both require adaptations due to the differences between this procedure and bankruptcy.

Finally, the assignment of claims is also conceivable in the context of the extraordinary administration procedure governed by Legislative Decree No. 270 of 8 July 1999, which refers to Art. 214 of the aforementioned bankruptcy law and to the rules on compulsory liquidation for all matters not provided for.

To conclude, it is worth noting that the review of the Code of Business Crisis and Insolvency will not bring substantial changes to the discipline above, because the rules mentioned herein remain essentially the same as those in Legislative Decree 14/2019.

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