The Supreme Court of Cassation recently addressed a supply contract between two parties that contained a ritual arbitration clause. Pursuant to the clause, an arbitration proceeding had been commenced, which had resulted in the defendant being ordered to pay damages. The defendant had subsequently appealed the arbitral decision for alleged violation of the procedural rules, despite the fact that appeals for the violation of substantive rules are precluded by legislation and case law.
The Supreme Court of Cassation recently found that parties alleging nullity of an arbitral award for the late delivery of the decision must notify the other parties and arbitrators before the award's deliberation pursuant to the Code of Civil Procedure. The decision strongly reaffirms a general principle of primary importance regarding arbitration under the code.
The Italian Civil Aviation Authority (ENAC) has issued a new regulation on unmanned aircraft (ie, drones), which aligns the existing national rules with EU Regulation 2018/1139. Against the backdrop of this evolving regulatory framework, ENAC has adapted effectively to the new EU legislation by working closely with stakeholders to enable drone use for a wide range of private and commercial activities.
Rome Fiumicino Airport is the first Italian airport, and one of the first worldwide, to have implemented a protocol to operate COVID-19-tested flights. Pursuant to the applicable ministerial decree, in order to be exempt from mandatory quarantine on arrival in Italy, passengers must show a certificate proving a negative molecular COVID-19 test or an antigen rapid test, carried out within 48 hours before the flight. Otherwise, they must undergo an antigen rapid test at the departure airport directly before boarding.
With Decision 136/2020, the Transport Regulatory Authority has once again addressed the regulatory models for airport charges, introducing significant amendments that companies which manage Italian airports open to commercial traffic of passengers, cargo and mail must follow. The authority is the independent national entity responsible for the oversight, regulation and negotiation of airport charges between airport managing companies on the one hand and airport users (airlines and operators) on the other.
The Supreme Court recently issued an important ruling on the liability and indemnity for damages caused during the supply of airport ground-handling services to airlines. The case originated from an accident suffered by a Boeing 767 aircraft operated by an Italian carrier at Verona Airport whose right wing hit the sliding gate of the hangar – where the aircraft was being recovered – during the towing phase conducted by one of the handling provider's trucks.
The government recently introduced additional measures to tackle the COVID-19 pandemic. A number of specific rules were introduced for the transport of airline passengers which must be complied with by airlines and airports to contain the spread of COVID-19 in Italy. The new rules will be in force until 17 May 2020, but they remain subject to extension or amendments in light of the continuously evolving scenario.
The Ministry of Economy and Finance recently launched a public consultation process on a draft decree setting out the rules for a fintech sector regulatory sandbox. The draft decree aims to promote technological innovation by allowing fintech companies to test new IT services and products in the financial, credit and insurance sectors under the supervision of the competent authorities for a limited period.
A recent reform introduced a non-possessory floating pledge to the Italian legal framework. Under the reform, the perfection of such security can take place without the delivery of a pledged asset to the secured creditor, thus introducing an important exception to the general legal framework. Similar to the floating charge structure, the absence of a dispossession requirement enables entrepreneurs to retain the availability of collateral which can be used in the course of the productive cycle.
Decree-Law 34 of 30 April 2019 introduced important amendments to the Italian securitisation framework. Securitisation special purpose vehicles can now play a more active role in the context of non-performing or unlikely-to-pay exposures. Further, a new breed of securitisation has been introduced, where the issuer's obligations are backed by real estate properties (or registered moveable assets) and related cash flows, as opposed to a portfolio of monetary claims.
The government recently extended the duration of the guarantee on the securitisation of non-performing loans, subject to European Commission clearance. The extension represents a welcome measure to strengthen the stability of the Italian banking system and support, without interruption, the process of reducing the stock of non-performing loans and developing a secondary market for them.
The government recently issued Decree-Law 22/2019, which is aimed at ensuring the security, financial stability and integrity of financial markets in the event of a so-called 'hard Brexit'. Under the decree-law, UK banks that carry out activities subject to mutual recognition on the United Kingdom's withdrawal date can continue carrying out their activities in Italy by serving notice to the Bank of Italy. Further, Italian branches of UK banks may continue to carry out their activities by serving notice to the Bank of Italy.
In 2019 the Milan Tribunal ruled in a case concerning the removal of directors for alleged management irregularities. The tribunal highlighted some important principles regarding companies' business continuity, as set out in Article 2086 of the Civil Code, which has been amended by the Crisis and Insolvency Code. The tribunal's award is important as it constitutes a first interpretation of the new wording of Article 2086, evidencing boards of directors' duties and obligations thereunder.
Pursuant to Paragraph 266 of the new Budget Law 2021, several duties relating to the mandatory coverage of company losses borne in 2020 have been postponed for five financial years, up until 2025. The new rules ease companies' financial commitments. Similarly, Article 44 of Law 120/2020 has postponed the requirement for a two-thirds qualified majority of stock capital quorum to pass resolutions of extraordinary shareholders' meetings until 30 April 2021.
The Rome Court of Appeal recently ruled on a Russian roulette clause included in a shareholders' agreement which had been entered into on a 50:50 basis. The validity of Russian roulette clauses has been disputed as several scholars consider them to be against the mandatory provisions of company law relating to a shareholder's withdrawal from a company and their assessment.
The Supreme Court of Cassation recently ruled on the revocation of the board chair of a listed company controlled by a public entity shareholder. The court clarified the concept of just cause with regard to directors' revocation under Article 2383 of the Civil Code. The court also stated that directors' revocation must be specifically provided for in the shareholders' meeting resolution. If the company cannot prove the revocation's just cause, the director must be compensated for damages borne.
The reimbursement of shareholder loans to a company and the reimbursement of loans made by companies belonging to the same group are postponed until other company creditors have been reimbursed if there is an excessive imbalance between the financed company's debt and its net equity or if its financial situation would be better improved through a capital increase. However, in light of the COVID-19 emergency, these norms have been suspended for loans made between 9 April 2020 and 31 December 2020.
Parliament recently enacted the Budget Law 2021 which, among other things, enables a portion of deferred tax assets to be converted into a tax credit relating to tax losses carried forward and excess aid to economic growth, accrued up to the fiscal year prior to that in which a business combination occurs. The rule aims to encourage business combinations and more structured and competitive realities on the market, especially in a crisis situation, such as that brought about by COVID-19.
A new provision establishes the requirements for the suitability of transfer pricing documentation. In order to align the domestic transfer pricing framework with the Organisation for Economic Cooperation and Development standards, the provision updates the rules relating to the content of transfer pricing documentation, which must be prepared in order to support the application of the arm's-length principle to intercompany transactions.
Decree-Law 104/2020 recently introduced a new opportunity for Italian companies to step up the cost of tangible and intangible assets (real estate and other immovable properties which are built or for resale are excluded) and participation in controlled and associated companies included in financial statements as of 31 December 2019. Therefore, for taxpayers for which the fiscal year matches the calendar year, the revaluation option can be exercised for the fiscal year ending 31 December 2020.
The government recently published Decree-Law 18/2020, the so-called 'Heal Italy' decree-law, which entered into force immediately. Article 55 of the decree-law entitles companies (not only banks and financial institutions, but also industrial and commercial companies) willing to dispose of non-performing loan portfolios and unlikely-to-pay exposures by 31 December 2020 to claim a conversion of deferred tax assets into tax credits, thus increasing their cash flow during this period.
In order to face the COVID-19 emergency, the government has issued Decree-Law 18/2020, a package of extraordinary measures to strengthen the national health service and provide financial and economic support to families, workers and companies. The decree-law entered into force on 17 March 2020 and will be converted into law, with potential amendments, by Parliament within 60 days of its adoption. This article summarises the main tax measures included in the decree-law.