Commentary on Judgment No. 18826 of 2024 on the Competing Proposal in Composition with Creditors

Judgment No. 18826 of July 10, 2024, issued by the Court of Cassation, offers an important reflection on the regulation of composition with creditors, particularly regarding the competing proposal under Article 163, paragraph 4, of the Bankruptcy Law. In this article, we will analyze the implications of the judgment and the meaning of the declaration of inadmissibility, as well as the possibilities of appeal.

The Declaration of Inadmissibility and Its Implications

The order declaring the competing proposal inadmissible plays a crucial role in the context of composition with creditors. The Court has established that such an order is not subject to appeal to the Court of Cassation, highlighting its temporary and non-definitive nature. This means that the decision of inadmissibility can be reviewed and modified at any time, in light of new circumstances or a different assessment of pre-existing situations.

• The order of inadmissibility is revocable.
• Review may occur following new evidence.
• It is possible to oppose the approval of the debtor's proposal.

Competing proposal pursuant to art. 163, paragraph 4, of the Bankruptcy Law - Declaration of inadmissibility - Appeal pursuant to art. 26 of the Bankruptcy Law - Appeal to the Court of Cassation - Exclusion - Reasons. In the matter of composition with creditors, the order deciding on the appeal against the declaration of inadmissibility of the competing proposal submitted pursuant to art. 161, paragraph 4, of the Bankruptcy Law is not subject to appeal to the Court of Cassation, as it is temporary and not definitive in nature, being revocable and modifiable at any time for a new and different assessment of pre-existing factual circumstances or for the occurrence of new circumstances, as the proposer may assert any aspect of illegality of the decree through opposition to the approval of the debtor's proposal.

The Role of the Proposer and the Possibilities of Opposition

A relevant aspect of the judgment concerns the proposer's right to assert any aspects of illegality of the decree. The Court of Cassation has clarified that, despite the impossibility of appealing to the Court of Cassation, the proposer retains the right to oppose the approval of the debtor's proposal. This aspect offers a form of protection for creditors and interested parties, ensuring that any illegality can be discussed and assessed in the opposition proceedings.

Conclusions

In conclusion, order No. 18826 of 2024 represents an important clarification on the subject of composition with creditors, highlighting the non-appealability to the Court of Cassation of the declaration of inadmissibility and the proposer's right to oppose the approval of the debtor's proposal. The judgment underscores the importance of flexibility and the possibility of reviewing decisions in the context of insolvency proceedings. This is fundamental to ensuring that all relevant circumstances can be adequately considered, thereby promoting a balance between the needs of debtors and the rights of creditors.