Risoluzione della banca e contratti in corso di esecuzione

In the context of bank resolution, the effects on executory contracts have so far been overshadowed by the spotlight on shareholders’ and creditors’ rights. Although the entry into resolution per se only makes ipso facto clauses unenforceable, it provides the resolution authority with pervasive powers con- cerning outstanding contracts, whose scope is unparalleled in ordinary insolvency procedures both in a domestic and comparative perspective. Such powers, in fact, allow the authority to freely mold the content of contractual agreements, except for those limits traceable in the required protection of financial market infrastructures (which may be disrupted by the compulsory alteration of financial contracts) and property rights of the bank’s counterparties. In this latter respect, the protection of the contractual position of the counterparties is ultimately entrusted to the “no creditor worse off” principle, as it occurs for shareholders and creditors, and thereby limited to its economic value.