ITALY Law and Practice Contributed by: Francesco Dialti, Vincenzo Cimmino, Valentina Bombino and Lucrezia Ghezzi, CBA Studio legale e tributario
year depending on the circumstances), with very few exceptions. In particular, payments of debts which are due and payable may be clawed back if made in the six-month period preceding the declaration of bankruptcy. Prepayments ( pagamenti anticipati ) are ex lege inef- fective if such acts have been made during the two- year period preceding the declaration of bankruptcy. In particular, prepayments can be revoked during this two-year period irrespective of whether the recipient was aware of the state of insolvency of the debtor. Corporate Benefit Any loan taken, security or guarantee granted by a company must be justified by a specific corporate benefit for the company or its group. In the absence of a corporate benefit, the relevant contracts may be declared null and void. Project finance is a very active market in Italy, notably in the renewables sector, in line with the global trend of supporting the energy transition. Due to the current reduced state support for the feed- in tariff scheme, an emerging trend is the development and corresponding demand for financing renewable energy plants on the basis of pure merchant risk, along with the possibility of providing long-term power purchase agreements. 8.2 Public-Private Partnership Transactions In the past 20 years, there have been many public- private partnership (PPP) transactions, in particular in the transportation sector (motorways) and healthcare (hospitals). PPP transactions are particularly relevant given that the measures under the so-called PNRR (National Recovery and Resilience Plan) are fully operational and require a strong commitment from the public administration to ensure project viability. 8. Project Finance 8.1 Recent Project Finance Activity
Following the enactment of new Public Contracts Code (Legislative Decree of 31 March 2023, No 36), some changes were also introduced in relation to the regulation of PPPs. Although the previous Public Contracts Code intro- duced the organic discipline for PPPs, this legal arrangement was given greater relevance in the new Public Contracts Code. The Code is the result of the work of a special commit- tee of mixed composition (Council of State members, lawyers, technicians, university professors) tasked with simplifying and accelerating procedures, in order to streamline processes and ensure full compliance with EU principles. 8.3 Governing Law Generally, project agreements are governed by Italian law, but it is possible for the parties (i) to apply a for- eign law by express choice made under the relevant contract, and (ii) to opt for international arbitration to settle disputes. In any case, the “overriding” mandatory provisions of Italian law cannot be derogated from, upon penalty of being disregarded by the Italian courts. Project agreements entered into with Italian public entities shall, on the contrary, be governed by Italian law and disputes shall be submitted to Italian courts. 8.4 Foreign Ownership Article 16 of the general law provisions of the Italian Civil Code states that a foreigner is allowed to enjoy the civil rights granted to citizens subject to reciprocity and subject to provisions contained in particular laws. This provision also applies to foreign legal persons. As a consequence, foreign entities may own real prop- erty in Italy only if their country of origin offers the same opportunity to Italian entities. However, it is to be noted that the following individu- als are, inter alia, treated on par with Italian citizens and are therefore exempted from the verification of reciprocity:
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