GLI ASPETTI DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE DEL FALLIMENTO DI GRUPPI BANCARI MULTINAZIONALI

In the absence of an international agreement among states, insolvencies of multinational groups of banks could in principle be dealt with only according to a so called “territorial approach”. Under the latter, every bank of a given group is considered to be an independent entity with the consequence that several insolvency proceedings are opened with respect to each of them in any of the states of their seats, different laws are applied and every court will try to grab as much assets as it can in order to satisfy its own local creditors. The five multinational banking defaults occurred in the last thirty years (BCCI, Fortis, Dexia, Kaupthing and Lehman Brothers) had to deal with such a scenario. Fortis, Dexia and Kaupthing had been resolved through a territorial approach. On the contrary, liquidators and courts involved in the BCCI and Lehman insolvencies (respectively begun in 1991 and 2008) tried to overcome the massive inconveniences that would have derived from a piecemeal liquidation by voluntarily cooperating and coordinating the proceedings, through “cross-border insolvency agreements” (also called “protocols”). Inspiration came from a more consolidated experience matured in this same direction in the corporate groups insolvencies. Awareness has then arisen - stronger than before - among states, practitioners and academics, of the need to regulate these insolvencies ex ante and once for all, in order to avoid the uncertainties of a case-by-case solution. Quite a few international organizations, such as the EU, the IMF, the Basel Committee and the Financial Stability Board, have been and still are pursuing this aim by preparing a considerable number of either soft law or hard law instruments for adoption by states.