Action for ineffectiveness under Art. 44 of the Bankruptcy Law and mandatory mediation: clarification by the Court of Cassation in Order no. 29432 of 2025

In the landscape of bankruptcy law and insolvency proceedings, the relationship between the protection of creditors and alternative dispute resolution (ADR) mechanisms represents a field of constant jurisprudential debate. One of the most discussed issues concerns the applicability of mandatory mediation, as provided for by Article 5 of Legislative Decree no. 28 of 2010, to typical actions exercised by bankruptcy bodies. With Order no. 29432 of November 6, 2025, the First Civil Section of the Court of Cassation addressed this issue with extreme clarity, outlining the scope of application of mediation in relation to the action for ineffectiveness governed by Article 44 of the Bankruptcy Law.

The case and the subject matter of the dispute

The case originated from an appeal filed by M., assisted by lawyer E. S., against F., represented by lawyer V. M., following the decision of the Court of Appeal of Rome on August 18, 2023. At the center of the debate was the request to declare the ineffectiveness, pursuant to the aforementioned Art. 44 of the Bankruptcy Law, of the acts of disposition of assets performed by the debtor after the declaration of bankruptcy. The counterparty objected to the inadmissibility of the claim due to the failure to carry out the mandatory mediation procedure, arguing that the matter fell within those related to property rights.

The principle of law of the Supreme Court

The filing of an action aimed at declaring the ineffectiveness, pursuant to Art. 44 of the Bankruptcy Law, of acts of disposition performed by the bankrupt party after the declaration of bankruptcy, does not fall among the disputes subject to the condition of procedural admissibility consisting in the prior performance of the mediation procedure under Art. 5, Legislative Decree no. 28 of 2010, as it does not concern the qualification and attribution of property rights and has, instead, a personal nature, being aimed solely at pursuing the effect of rendering the asset-disposition act carried out by the debtor unenforceable against the creditors.

The principle of law reported above highlights the logical-legal core of the Supreme Court's decision. The judges of legitimacy rejected the thesis of the necessity of preventive mediation, making a clear distinction between actions that directly affect the ownership and consistency of property rights and those that, instead, have a purely personal and instrumental nature for the protection of the body of creditors.

Why the action under Art. 44 of the Bankruptcy Law excludes mandatory mediation

To fully understand the scope of this ruling, it is useful to analyze the technical reasons that exclude the obligation of mediation in this specific area:

• Personal nature of the action: The action under Art. 44 of the Bankruptcy Law does not aim to redefine ownership or other property rights of enjoyment over the asset, but pursues the objective of rendering the disposition act "unenforceable" (i.e., ineffective) solely against the insolvency creditors.
• Taxative nature of the subject matters: Art. 5 of Legislative Decree no. 28/2010 exhaustively lists the matters subject to mandatory mediation (including property rights). Rules that limit access to jurisdiction by imposing conditions of admissibility are subject to strict interpretation and cannot be extended by analogy.
• Speed of the insolvency procedure: Requiring mediation for purely recovery or ineffectiveness actions would unnecessarily slow down the satisfaction of creditors, conflicting with the principles of efficiency of the bankruptcy procedure.

This orientation is in perfect continuity with the precedents of the same Court (such as judgment no. 25855 of 2021), consolidating a trend that protects the speed of clawback actions and insolvency ineffectiveness.

Conclusions: a principle of efficiency for professionals in the sector

Order no. 29432 of 2025 of the Court of Cassation offers an important point of reference for bankruptcy trustees and all professionals involved in managing the recovery of insolvency assets. By excluding the obligation of mediation for the action under Art. 44 of the Bankruptcy Law, the Supreme Court avoids unnecessary bureaucratic and economic burdens for the proceedings, while ensuring a rapid and direct judicial path to restore the patrimonial guarantee in favor of the creditors.