THE JUDGE’S ROLE IN INSOLVENCY PROCEDURES Avv. Prof. Mariacarla Giorgetti, Via Guastalla n. 15, Milano - ITALIA

Law Decree 5/2006 involved a complete revision of the powers and jurisdiction of the Judge appointed to deal with insolvency procedures. Prior to this reform, the appointed Judge was the driving force behind such procedures, with the task of directing and authorizing the activities of the official receiver. The 2006 Law Decree revised his functions to those of supervising and ensuring the regularity of the procedure.

This latter, in fact, had previously enjoyed a marginal role in the procedure. Its faculties were limited to that of giving opinions and it was hardly ever involved in major decisions affecting the procedure. As a result of the 2006 Law Decree it has assumed an active role. It now handles the powers of authorization previously held by the appointed Judge or by the Court itself.

We will now examine more specifically the functions attributed to the appointed Judge, as they are described in the single dispositions of the revised law.

To the effects of art. 25 l. and those following, the appointed Judge, in addition to the principal functions of supervising and controlling the regularity of the procedures:

-no. 1) refers to the court on all matters for which a provision by the Panel of (3) Judges is requested. -no. 2) issues or obtains from the proper authorities any urgent provisions for the conservation of the assets, excluding those affecting the rights of third parties claiming a right incompatible with acquisition. - no. 3) summons the receiver and the creditors’ committee in the cases prescribed by the law and whenever he deems it worthwhile for the correct and speedy performance of the procedure.

- no. 4) in accordance with the receiver’s proposals, pays the fees and terminates the appointment of those persons whose work had been required by the receiver in order to carry out the insolvency procedure. - n. 5) pronounces, within fifteen days, on complaints made against acts of the receiver or the creditors’ committee. - no. 6) authorizes in writing the receiver to plead in court as petitioner or defendant. Such authorization shall always be given for specific actions and must be issued singly for each level of court hearing. In accordance with the receiver’s proposals, pays the fees and where necessary terminates the appointment of the defence counsels nominated by the said receiver.

- no. 7) in accordance with the receiver’s proposals, appoints the arbitrators, having verified that the requisites envisaged by the law are present. - no. 8) verifies credits and real and personal rights claimed by third parties as of chapter V.