THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1325/2019

In the matter between:
COOPERATIVA MURATORI CEMENTISTI –
CMC Di RAVENNA Società Cooperativa a
Responsabilita Limitata

First Appellant
LIEBENBERG DAWID RYK
VAN DER MERWE NO

Second Appellant
CHRISTOPHER RAYMOND REY N.O.
Third Appellant
and
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION

First Respondent
ESOR CONSTRUCTION (PTY) LTD

Second Respondent
ABSA BANK LTD

Third Respondent
STEFCOR CONSTRUCTION (PTY) LTD
Fourth Respondent

Neutral citation: CMC v CIPC and Others (1325/2019) [2020] ZASCA
151 (20 November 2020)
Coram:
PONNAN,
WALLIS
and
MOLELMELA
JJA
and
EKSTEEN and MABINDLA-BOQWANA AJJA
Heard:
9 November 2020

Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down of the judgment is deemed to be 09h45 on
20 November 2020.
Summary: Companies Act 71 of 2008 – business rescue – whether
external company can enter business rescue – recognition of foreign
composition among creditors approved by Italian court – who may apply
and basis for recognition.

ORDER

On appeal from: Gauteng Division, Pretoria of the High Court
(Potterill J, sitting as court of first instance):
The application to lead further evidence on appeal is dismissed
with costs on the scale as between attorney and client, including the costs
of two counsel.
The appeal is dismissed with costs, including the costs of two
counsel.

JUDGMENT

Wallis JA (Ponnan and Molemela JJA and Eksteen and
Mabindla-Boqwana AJJA concurring)

[1] The central issue in this appeal is whether a company incorporated
in a country other than South Africa is entitled to take advantage of the
business rescue provisions of the Companies Act 71 of 2008 (the Act).
That issue arose in the following circumstances. The Appellant,
Cooperativa
Muratori
&
Cementisi-CMC
Di
Ravenna
Societá
Cooperativa a Responsibilita Limitata (CMC), is a long-established
company incorporated in Italy and active in the construction industry
internationally. It is registered as an external company in terms of the
Act. In the latter stages of 2018 CMC internationally encountered a cash
flow crisis and significant financial difficulties. This caused it to lodge
with the Court of Ravenna, Bankruptcy Section, a preventive application
for admission to the procedure for the arrangement with creditors
pursuant to article 161 of the Italian Bankruptcy Law. On

7 December 2018 the Court of Ravenna issued an order assigning CMC
sixty days within which to file a proposal for composition with its
creditors; ordered it to submit to possible authorisation requests and to
furnish monthly reports; and appointed three judicial commissioners to
oversee these functions.

[2] Not content with these proceedings in its country of incorporation,
the board of directors of CMC resolved on 14 December 2018 that the
company was financially distressed as contemplated in s 129(1) of the
Act and should be placed under supervision. Pursuant thereto, Messrs
Van der Merwe and Rey, who have played no active role in this litigation,
were appointed as business rescue practitioners (BRPs) to CMC.
However, on 15 February 2019 Mr Rey was advised by the first
respondent, the Companies and Intellectual Property Commission
(CIPC), that because CMC is an external company it could not be placed
under business rescue in terms of the Act. That precipitated the present
application, brought as a matter of urgency on 7 March 2019, for an order
declaring that CMC was under business rescue in terms of the Act,
alternatively declaring that the order issued by the Court of Ravenna was
enforceable in South Africa.

[3] The CIPC was cited as the sole respondent in that application.
However, Esor Construction (Pty) Ltd (Esor), the second respondent;
Absa Bank Ltd (Absa), the third respondent; and Stefcor (Pty) Ltd
(Stefcor), the fourth respondent, sought leave to intervene in the
proceedings. Esor and Stefcor delivered affidavits in opposition to the
relief sought. Stefcor also sought an order for the provisional winding up
of CMC.

[4] The application came before Potterill J in the Gauteng Division of
the High Court, Pretoria. She dismissed CMC’s claims and Stefcor’s
counter-application. The appeal by CMC is with her leave. Only Esor
opposed the appeal. Absa played no active role in the litigation and
Stefcor has indicated that it abides the decision of this court on the
appeal.

Was business rescue available to CMC?
[5] Business rescue is defined in s 128(1)(b) of the Act as meaning
proceedings to facilitate the rehabilitation of a company that is financially
distressed. It does this by placing the company’s affairs under temporary
supervision by a BRP; granting a temporary moratorium on the rights of
claimants against the company or in respect of property in its possession;
and making provision for the approval of a plan to rescue the company by
restructuring its affairs. In terms of s 129(1) the board of a company may
resolve that the company voluntarily begins business rescue proceedings
and place the company under supervision. Any such resolution must be
lodged with the CIPC and the company must appoint a BRP to undertake
the supervision of the business rescue. This is the route that CMC
followed and it appointed Messrs Van der Merwe and Rey as BRPs.

[6] Business rescue is available only to a company. That is defined in
s 1 of the Act as meaning:
‘A juristic person incorporated in terms of this Act, a domesticated company, or a
juristic person that, immediately before the effective date─
(a) was registered in terms of the ─
(i) Companies Act 1973 …, other than as an external company as defined in that Act;
or
(ii) Close Corporations Act 1984 …, if it has subsequently been converted in terms of
Schedule 2;

(b) was in existence and recognised as an ‘existing company’ in terms of the
Companies Act 1973 …; or
(c) was deregistered in terms of the Companies Act 1973 …, and has subsequently
been re-registered in terms of this Act.’

[7] Whether business rescue was available to CMC depended on it
being a company in terms of this definition. In argument it was accepted
that it is not a company in terms of any of the three sub-sections of the
definition. Although it was registered as an external company in terms of
the Companies Act 61 of 1973 (the old Act), sub-section (a) expressly
excludes an external company registered under the old Act and it was
never a close corporation. A company existed and was recognised under
the old Act if it existed and was recognised in terms of the 1926
Companies Act, 46 of 1926, but CMC was not such a company and does
not qualify under sub-section (b). Finally, it was not deregistered under
the old Act so it does not qualify under sub-section (c).

[8] CMC attempted to circumvent this in the following way. The
definition of a 'foreign company' under s 1 of the Act means 'an entity
incorporated outside the Republic' irrespective of whether it is a profit or
non-profit entity, or carrying on business or non-profit activities within
the Republic. The definition of ‘juristic person’ includes a foreign
company and the definition of an ‘external company’:
‘Means a foreign company that is carrying on business, or non-profit activities, as the
case may be, within the Republic, subject to section 23(2).’

[9] The argument proceeded as follows. The definition of 'company'
commences by saying that it is 'a juristic person incorporated in terms of
this Act'. A juristic person includes a foreign company and where that is
carrying on business or non-profit activities within the Republic it is an

external company that is required to register in terms of s 23 of the Act.
The expression 'incorporated in terms of this Act' must therefore be
construed as including a foreign company that had registered in terms of
s 23 of the Act.

[10] There is no merit in this argument, which flies in the face of the
language of the Act. Incorporation and the legal status of companies is
dealt with in Part B of Chapter 2 of the Act. Incorporation takes place in
terms of s 13(1) by the completion and signing of a Memorandum of
Incorporation and filing a Notice of Incorporation with the CIPC. As soon
as possible after accepting the Notice of Incorporation the CIPC assigns a
unique registration number to the company and enters the prescribed
details in the register.1 From the date of registration the company is a
juristic person and exists thereafter until its name is removed from the
register.2 CMC has not been incorporated in terms of this process.

[11] Section 23 of the Act dealing with the registration of foreign
companies is in Part C of Chapter 2 of the Act dealing with
'Transparency, accountability and integrity of companies'. That places it
firmly outside the provisions of the Act dealing with the incorporation of
companies. A foreign company registered as an external company is not
incorporated 'in terms of this Act' as required by the definition of
'company', because it has not been incorporated under the provisions of
the Act that deal with the incorporation of companies.

[12] The final nail in the coffin for this argument is provided by sub-
section (a) of the definition of 'company', which expressly excludes a

1 Section 14(1) of the Act.
2 Section 19 of the Act.

foreign company from being a 'company' under the Act, notwithstanding
that it was registered in terms of the old Act. That shows clearly that
foreign companies were only to be required to register in South Africa for
limited purposes. Where a foreign company is required to comply with
the same provisions of the Act as a domestic company, which is the case
where it wishes to make a public offering of securities in this country in
terms of Chapter 4 of the Act, there is special provision for this. Thus
s 95(1) provides a special definition of 'company' by saying that:
In addition to the meaning set out in section 1, also includes a foreign company.’
That extended definition includes both external companies, that is foreign
companies doing business in South African and registered under the Act,
and any other foreign company that seeks to make a public offer of
securities to the South African public. This is to ensure that any such
offer complies with South African requirements in regard to disclosure
and the like in the making of any such offer. The special definition
reinforces the conclusion that elsewhere in the Act when there is
reference to a company it means a company as defined in s 1. The
inevitable conclusion is that an external company may not be placed
under business rescue and the views of the CIPC that led to this
application were correct.

The Italian proceedings
[13] In the alternative to a declaratory order that the company was in
business rescue, CMC asked for an order in the following terms when
these proceedings were launched in March 2019:
'3.1
the order issued by the Court of Ravenna (Bankruptcy Office) in Italy dated
6 December 2018, granting the Preventative Arrangement sought by the first applicant
in the composition proceedings; ('the Italian order') is hereby recognised in the
Republic of South Africa;

3.2
it is declared that the Italian order is enforceable in the Republic of South
Africa.'

[14] In the English translation annexed to the founding affidavit the
order in question read:
'Assigns the applicant company a deadline of 60 days to file the agreement with
creditors proposal, the certification statement and documentation pursuant to
article 161, sections 2 and 3 of the Bankruptcy Law, or alternatively, the possible
restructuring agreement and the report prepared by the professional certifier, referred
to under section 1 of article 182 bis of the Bankruptcy Law.
Orders the company to submit possible authorisation requests pursuant to article 161,
section 7 of the Bankruptcy Law to the court, and on a monthly basis send a
summarised report, specifying the ordinary and extraordinary magnitude deeds
performed and the payable and receivable transactions that occurred, accompanied by
the bank statements for the relevant period.'
Three individuals were named as judicial commissioners for the purpose
of 'performing the functions referred to in the motivation and any
additional and eventual functions that may become necessary'.

[15] A brief explanatory memorandum by an Italian lawyer indicated
that the process under which the order was made involves an endeavour
by the company to reach an arrangement with its creditors that will enable
it to continue in business. The period of 60 days was directed at enabling
the terms of a proposal to be prepared for submission to creditors. During
that period there appears to be some kind of moratorium on enforcement
of legal claims against the company. On 6 February 2019 the Court of
Ravenna extended the sixty day period until 6 April 2019.

[16] By the time the application was heard by Potterill J matters had
moved on considerably. A plan was lodged with the court on
8 April 2019 and on 12 June 2019 the court granted an order (a) admitting

the company to the pre-insolvency arrangement procedure; (b) appointing
a delegated judge and judicial commissioners; (c) directing that the pre-
insolvency arrangement be communicated to creditors by 31 July 2019;
and (d) providing for a meeting of creditors to be convened by no later
than 13 November 2019 to consider the arrangement.

[17] These changed circumstances did not prompt CMC to amend the
relief it was seeking, namely, the recognition of the order of
6 December 2018. The fact that everything that the Court of Ravenna had
directed should happen in terms of that order had happened and that
further and different orders had been granted was disregarded. It is an
understatement to say that this introduced an air of unreality into the
proceedings.

[18] That air of unreality became even more mystifying after Potterill J
handed down her judgment and granted leave to appeal, because in its
notice of appeal to this court CMC said that, if its argument in regard to
business rescue was not upheld, it would seek in the alternative an order
recognising the order of 6 December 2018. By this stage, as we now
know, the creditors' meetings had taken place and the proposed
composition with creditors approved. This was reflected in CMC's heads
of argument which said that it intended to seek the leave of the court to
adduce further evidence apprising it of the progress of the proceedings in
Italy and the fact that a plan had been approved by the requisite majority
under the Italian Bankruptcy Law. That was on 30 June 2020. The need
for such evidence became clamant when Esor's heads of argument were
filed on 29 July 2020 as they said that they would seek leave to adduce
further evidence that on 29 May 2020, following hearings on

11 and 25 March 2020 the Court of Ravenna had finally approved the
composition on 29 May 2020. In fact they did not do so.

The application to lead further evidence
[19] Notwithstanding the manifest urgency of any application to adduce
further evidence on appeal, nothing was forthcoming until Friday,
6 November 2020, three days before the appeal was to be argued on
Monday, 9 November 2020. This revealed that Esor was correct in saying
that the composition had been approved by a court order granted on
29 May 2020. The composition allegedly dealt with CMC's assets and
liabilities worldwide and the worldwide claims of creditors including
those in South Africa. On 7 August 2020 the Chancellor's Office of the
Court of Ravenna certified that there was no appeal against the order
approving the composition.

[20] The only explanation for this delay was a single paragraph in the
affidavit filed in support of the application, reading as follows:
'In August the courts in Italy are closed for the summer holidays. As a result of this
the decree granted by the Court in Ravenna on the 7th August 2020 was only received
in early September 2020. In addition because of the Covid emergency, obtaining an
appointment for the translation of the decree took some time. Ultimately, the
translation of the decree was only obtained on the 16th October 2020. It was for this
reason that the launch of this application was delayed.'

[21] This explanation was wholly unacceptable as was the delivery of
100 pages of affidavits and annexures in the middle of a court term and
three days before the hearing of the appeal. Describing the explanation as
cursory is to flatter it. The judgment approving the composition reflects
that the president of the court in Ravenna twice directed expedited
hearings in the light of the Covid-19 epidemic and hearings were held

with the use of personal protective equipment and the application of
social distancing guidelines. The judgment showed that the judicial
commissioners supported the composition and only a handful of creditors
expressed objections. These were addressed at a hearing on 20 May 2020
and the judgment approving the compromise was handed down on
29 May 2020. It was translated into English immediately; the translator's
certificate being dated 6 June 2020. This court was not given the
elementary courtesy of it being recognised that adducing additional
evidence required similar urgency from the litigants and their legal
representatives. When this was raised with counsel we were not even
favoured with an apology.

[22] It is inexcusable that this information was not brought to this
court's attention simultaneously with the delivery of the heads of
argument. Instead the heads of argument were inaccurate in saying only
that the creditors had voted in favour of the composition and not
mentioning that it had been approved by the court. There is a cryptic
statement in para 122 of the heads of argument for CMC that CMC is
entitled in its alternative prayer to an order 'recognising the court ordered
arrangement with creditors, granted by the court of Ravenna on
7 December 2018'. It is unclear whether this was possibly hinting at the
order of 29 May 2020. We have no affidavit from the South African
attorney explaining his instructions to counsel and, if they did not refer to
the order of 29 May 2020, why this important information was not
included. Nor do we know whether he was advised by counsel to bring
the application urgently and, if not, why not.

[23]  The excuse quoted above in para 20, that the certificate that there
were no appeals pending was only issued on 7 August, when the courts

were closed for the summer holidays, is not born out by the certificate.
That shows that it was issued at the specific request of CMC's lawyer, a
Mr Fabrizio Corsini, on 7 August 2020. It is dated and signed on
7 August and bears what appear to be revenue stamps of four euros. On
the face of it, Mr Corsini had it in his possession on that day and certainly
must have been aware of it. All the relevant information was in the
possession of CMC and its Italian lawyer and should have been in the
possession of its South African lawyer. There was no reason to wait until
16 October 2020 for the certificate to be translated in Italy. There are
Italian translators in this country.3 In any event this uncontroversial
information could have been furnished to the court on the basis of
information and belief in a short affidavit from the South African
attorney.

[24]  The additional evidence demonstrated in no uncertain fashion,
what was apparent by the time the case came before the High Court,
namely that the order sought in the original notice of motion and the
notice of appeal had long since ceased to be of any relevance. There is
nothing to recognise in that order. The period it gave CMC to produce a
plan of composition with its creditors has passed and it has done just that.
Everything that has happened since has happened in accordance with
other court orders and provisions of the Italian Bankruptcy Code that
have not been furnished to us.

[25]  Mr Brett SC argued that the order of 7 December 2018 was a
process akin to one of judicial management or a section 311 compromise
under the old Act, or business rescue under the Act, and that we should
treat the recognition of the order as a continuation of that process. That is

3 The website of the Italian Consulate has a list of 18 sworn translators.

plainly wrong. An order giving a company a temporary moratorium from
claims while it prepares a plan to place before its creditors is
fundamentally different from an order convening meetings to consider a
plan, or an order approving the adoption of the plan by a meeting of
creditors. Under none of the three processes he identified would an initial
order, for example, the appointment of provisional judicial managers or
an order for meetings to be convened to consider an offer of compromise,
be treated as encompassing the final judicial management order or the
sanction of the compromise.

[26] The last, but by no means the least important, reason for not
admitting this evidence is that, pursuant to it, CMC sought an order, the
effect of which as explained in argument would be to impose upon South
African creditors the terms of the composition approved by the Court of
Ravenna, without their being cited or served or having had any
opportunity to submit evidence or argument against an order having that
effect. That would amount to a wholesale breach of their constitutionally
guaranteed right of access to courts. It cannot be countenanced.

[27] The application to adduce further evidence must be dismissed. An
appropriate penal order for costs should accompany its dismissal.

The alternative relief
[28] For the reasons already canvassed the prayer for alternative relief
in the form of an order recognising the Court of Ravenna's order of
7 December 2018 was moot long before the appeal reached this court.
The prayer was in any event fatally flawed and doomed from the outset to
fail.

[29] In the first place there was nothing in the order of
7 December 2018 that was capable of being enforced or recognised in
South Africa. CMC was given leave to prepare a plan for a composition
with its creditors. It was required to submit certain authorisation requests
and reports to the Court of Ravenna. Neither of those was in any way
executable in South Africa and recognising the order in South Africa
could not possibly have had any effect in this country.

[30] The purpose behind this request was twofold. It was claimed that a
recognition order would put CMC's South African operations under the
supervision of the Board of Commissioners appointed by the Italian court
for so long as the process of securing approval of a composition with
creditors continued in Italy. Second it was suggested that this would
entitle CMC to the same moratorium against claims by creditors in this
country as the Italian proceedings afforded CMC in Italy.

[31] The legal foundation for this was misconceived. Reliance was
placed upon the decision of this court in Jones v Krok4 to claim the
enforcement of the Court of Ravenna's order in this country. But not all
judgments by foreign courts are enforceable in South Africa solely on the
grounds set out in that case. Judgments that determine a party's rights or
status5 are capable of giving rise to a cause of action in South Africa and
Jones v Krok was concerned with that type of case. It was not concerned
with the enforcement in this country of the statutes of other countries
governing matters such as company law or insolvency. There the

4 Jones v Krok 1995 (1) SA 677 (A) at 685B-E; Purser v Sales; Purser and Another v Sales and
Another 2001 (3) SA 445 (SCA) para 11, cited with approval in Government of the Republic of
Zimbabwe v Fick and Others 2013 (5) SA 325 (CC) para 38.
5 LAWSA, Vol 7(1) 3ed (2019) para 369. The most usual cases involve monetary judgments and
claims to specific property. Questions of status such as the grant of a decree of divorce will be more
readily recognized than an order for the custody of a minor child where the interests of the child are
paramount. Righetti v Pinchen and Another 1955 (3) SA 338 (D).

principle that foreign statutes have no extra-territorial effect comes into
play. Absent recognition by our courts in appropriate proceedings the
foreign trustee or liquidator has no authority to deal with assets in this
country and any moratorium operating elsewhere will not bind South
African creditors. 6

[32] In dealing with issues involving foreign liquidators and similar
persons acting in terms of the legislation governing insolvency or
bankruptcy or the winding-up of companies, the established principle is
for the foreign liquidator to apply for recognition in this country. Without
recognition in this country they are not entitled to bring proceedings in a
court in South Africa.7 The court granting recognition will then make an
appropriate order including that they furnish security and will distribute
the assets in this country in accordance with the law of this country.8
Such recognition is granted on terms that protect the position of local
creditors holding security for their claims under domestic law and the
powers to be exercised by the foreign liquidator will be dealt with in the
recognition order.9

[33] If anyone were to seek recognition in this country of the order of
the Court of Ravenna it would have to be the Judicial Commissioners,
who appear from the sparse information in the founding affidavit to play
some kind of oversight role in relation to the process of arriving at and
securing the approval of a composition. But they do not appear to hold a
position similar to a trustee or liquidator who is charged with the

6 Ward and Another v Smit and Others: In re Gurr v Zambia Airways Corporation Ltd 1998 (3) SA 175
(SCA) at 179D-J.
7 Moolman v Builders & Developers (Pty) Ltd (in provisional liquidation) 1990 (1) SA 954 (A) at
959E-960 C.
8 Donaldson v British South Africa Asphalt and Manufacturing Co Ltd 1905 TS 753 at 756-757,
9 Re African Farms Ltd 1906 TS 373.

possession of the assets of the company and owes a duty to creditors to
deal with their claims. Judging by the judgment of 29 May 2020, which is
the only source available to us, their role is to report to the court on the
fairness of the composition. Nevertheless, if anyone was to apply for
recognition in this country it would be them and they have brought no
such application. On the face of it the claim that the order of the Court of
Ravenna be recognised in this country is brought by a party (CMC) that
has no right to seek such an order.

[34] For those further reasons the application for the alternative order
was as misconceived as the application for the main order.

Result
[35] Both the application to lead further evidence and the appeal must
be dismissed. To show the court's disapproval of the manner in which the
application to lead further evidence was brought, its dismissal will be
accompanied by an order that it pay the costs on an attorney and client
scale. The following order is made;
The application to lead evidence on appeal is dismissed with costs
on the scale as between attorney and client, including the costs of two
counsel.
The appeal is dismissed with costs, including the costs of two
counsel.

____________________
M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:

JJ Brett SC (with him D Mahon)
Instructed by:

Terry Mahon Attorneys, Sandton;

Webbers, Bloemfontein

For second respondent: WG La Grange SC  (with him AC Russell)
Instructed by:

Tiefenthaler Attorneys Inc, Rivonia;
Honey Attorneys Inc, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM The Registrar, Supreme Court of Appeal
DATE 20 November 2020
STATUS Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

CMC v CIPC and Others (1325/2019) [2020] ZASCA 151
(20 November 2020)

The SCA today dismissed an appeal by Cooperativa Muratori & Cementisi-
CMC Di Ravenna Societá Cooperativa a Responsibilita Limitata (CMC), a long-
established company incorporated in Italy and active in the construction
industry internationally and registered as an external company in terms of the
Companies Act 71 of 2008. In 2018 it experienced financial difficulties and
approached the Court of Ravenna (Bankruptcy Section) for relief in terms of the
Italian Bankruptcy Law. The relief it sought was for it to be given time to prepare
a plan for the conclusion of a composition with its creditors. An order was made
on 7 December 2018 granting it sixty days within which to file a proposal and
imposing certain reporting obligations. Three judicial commissioners were also
appointed.
On 14 December 2018 the board of directors of CMC passed a resolution
placing it under business rescue in South Africa. Business rescue practitioners
were appointed, but in February 2019 they were informed by the CIPC that a

foreign company, even if registered as an external company, was not entitled
to enter business rescue in South Africa. An application for urgent relief that
CMC was validly under business rescue was dismissed by the Gauteng
Division of the High Court, Pretoria. The appeal against that order was
dismissed by the SCA on the basis that the definition of 'company' in the
Companies Act excluded a foreign company, even if registered as an external
company under the Act. It followed that it was not capable of being placed under
business rescue in South Africa.
The high court had also dismissed an application in the alternative for the
recognition of the order of the Court of Ravenna. The appeal against that order
was likewise dismissed. The SCA held that the order was moot and the basis
for seeking it misconceived. All the events contemplated in the order of
7 December 2018 had occurred and been overtaken by subsequent events
including subsequent decisions by the Court of Ravenna. The order had been
given by an Italian court under Italian legislation and had no extra-territorial
effect. Unless recognition was given by a South African court to a foreign
liquidator or trustee or similar person, they would have no standing in South
Africa to act in terms of their appointment in another country. The application
was not brought by the judicial commissioners appointed in Italy and could not
be brought by CMC.