Cap.4 "La Continuità aziendale nel concordato preventivo:caratteristiche, ruoli e criticità"

The contribution is in a volume that discusses methods for dealing with the crisis of companies, with particular emphasis on all those methods provided by the new legislative provision, which pose the ambitious objective of maintaining a going concern by seeking to prevent the piecemeal liquidation of a company’s assets. Specifically, the contribution analyses how, with the introduction of art. 186 bis of the Bankruptcy Law, the legislator has emphasised the relevance of the procedure of the arrangement with creditors on a going concern basis (concordato preventivo in continuità). The notion of arrangement in a going concern is therefore broader compared to that of current common practices, deriving directly from business economics theories, including: both the continuation of the business by the debtor itself (concordato con continuità diretta) or by any third parties (concordato con continuità indiretta). Liquidation composition is now only defined on a residual basis for all those cases where it is not possible to foresee anything other than the liquidation sale of the individual assets without any systematic enhancement of all or part thereof. The legislator has reconfirmed the centrality of the concept of company as a complex system, capable of creating wealth and consequently worth specific attention and particular protection. The new art. 186 bis of the Bankruptcy Law envisages the necessity for a company that wishes to access an arrangement in a going concern to demonstrate to its creditors its capacity to better meet the commitments indicated in the petition through the continuation of the business. For such purpose the preparation of a true and proper business plan is explicitly required. This should show not only profit flows, and thus the anticipated future costs and revenues, but also the financial flows that the continuation of the business will generate, the financial needs deriving from the investments anticipated in the plan and the related coverage methods. The perspective of preparation of this business plan is to safeguard the company’s residual value and the purpose is represented by the following-up of the objectives of minimisation of the rather significant damage that has already occurred, which is potentially and dangerously at risk of worsening if not managed. The contribution concludes with a comparison with the provisions of the American Chapter Eleven on the theme.