Italy

From BASESwiki

Jump to: navigation, search


General Context

The long standing policy debate on the use of ADR in Italy has currently entered a phase of consolidation, overcoming the old sense of diffidence that brought courts to oust alternatives to civil justice. Since Law n. 580/1993 (on reorganization of the Italian Chambers of Commerce), ADR methods have been increasingly perceived as a real alternative to court proceedings. The Chambers of Commerce have become ADR providers for disputes between businesses or businesses and consumers. Further developments and acceptance of ADR is to be expected in the near future since the recent reform of civil proceedings (Law n. 69/2009) provides that the government shall issue a specific set of rules on ADR in light of the relevant EU legislative background.

Regulation of Alternative Dispute Resolution

Arbitration. Arbitration allows parties to derogate the State courts jurisdiction substituting it with one or three arbitrators chosen by the parties; the arbitrators issue an enforceable arbitration award; it is regulated by articles 806-840 of the civil procedure code, reformed by Legislative Decree 40/2006.

A compulsory arbitration procedure (criticized by prominent Authors) is provided by Article 64 of Legislative Decree n. 30/2005 (" Intellectual Property Code") to settle disputes related to industrial inventions of employees.

Legislative Decree n. 179/2007 instituted within the Consob ("Commissione Nazionale per le Società e la Borsa", i.e. the public authority responsible for regulating the Italian securities market) a Conciliation and Arbitration Chamber deputed to resolve disputes between investors and financial brokers for asserted violation of the latter's duties of information, transparency and fairness.


Conciliation/Mediation In Italy, the terms "conciliation" and "mediation" are generally used with the same meaning, with reference to all those procedures of settling a dispute away the process, before a third neutral party who helps parties to reach a final agreement. Many types of conciliation are available: judicial and non judicial conciliation (whether the third party is a judge or just a mediator); voluntary and compulsory conciliation (depending on whether parties are forced by law to attempt conciliation or not).

In detail:

Court-annexed conciliation represents a method of judicial conciliation governed by the Civil Procedure Code (i.e. conciliation in labour or family proceedings, in proceedings before the Justice of the Peace, etc.: see paragraph 4 below).

Non-judicial compulsory attempts of conciliation before authorized conciliation bodies are provided i) in sub-supply disputes by Law n. 192/1998; ii) in disputes between telecommunication bodies and customers by Law n. 481/1995; iii) in disputes regarding tourism services supply by Law n. 135/2001; iv) in franchising disputes (Law n. 129/2004); v) in disputes regarding the so called "patti di famiglia" (agreements - regulated by Law n. 55/2006 and Article 768 octies of the Civil Code - whereby an entrepreneur donates his firm to a son, or a grandson, while the other sons and the spouse – the uninheritable relatives – receive some money or other goods according to the value of the firm and following the previsions about their rights). Such attempts of conciliation are mandatory since the parties cannot start proceedings before an ordinary court without having preliminary attempted conciliation.

Voluntary conciliation has received an express recognition by Legislative Decree n. 5/2003 for all corporate matters listed at the Article 1 of the above mentioned Decree. The Ministry of Justice's Decree n. 222/2004, set out the eligibility' requirements to be listed within the register of authorized conciliation bodies in corporate matters hold by the same Ministry.

Conciliation before the Justice of the Peace According to Article 322 of Civil Procedure Code, parties may file request for a non-judicial conciliation also before the Justice of the Peace in the role of mediator. A different form of conciliation before the Justice of Peace is regulated by Article 320 Civil Procedure Code, providing a form of compulsory judicial conciliation to be attempted by the Judge at the first court appearance of parties.

Ombudsman Ombudsman was introduced in the private relations of commercial enterprises, as a service to customers. Particularly important is the Banking Ombudsman, instituted in 1993 by the Italian Banking Association. The Ombudsman is not governed by any particular set of rules; it generally is administered by private or public bodies which have their own regulation.

Amicable settlement (so called "transazione")Articles 1965-1976 of the Italian Civil Code regulate amicable non judicial settlement of disputes, governed by the general principles of contract law.

Preventive technical expert advice ("consulenza tecnica preventiva ai fini della composizione della lite") Article 696 bis Civil Procedure Code (introduced by Law n. 80/2005) has introduced this new ADR method aimed at settling disputes regarding the determination of the specific amount of credits accrued by the non-fulfilment of contractual or extra-contractual obligations. In such case, upon parties' request, the Judge appoints an expert who shall attempt conciliation as a mediator.


ADR Institutions. There are public dispute resolution institutions such as the Chambers of Commerce and private ones, which provide arbitration and mediation services.

The major arbitration institutions in Italy are the Milan Arbitration Chamber instituted by the Milan Chamber of Commerce and the Rome Arbitration Chamber instituted by the Rome Chamber of Commerce that now also provide mediation services. ADR is also administered by all Italian sportive federations.

Also the Arbitral Chamber of the Italian Association for Arbitration (A.I.A.) is noteworthy.


Mandatory or court-annexed ADR Within the Italian system there are many mandatory or court-annexed mechanisms of mediation / conciliation.

i)Labour proceedings According to Article 410 of the Civil Procedure Code, the preliminary attempt of conciliation before Labour Courts requires the parties to appear before a conciliation panel. This phase represents a compulsory preliminary condition to start proceedings before an ordinary court. If conciliation is successful a report is drafted and signed by the parties and the members of the panel. If conciliation fails, the case will be heard before the court.

The same rule applies not only to labour matters but also to all disputes listed in the article 409 of Civil Procedure Code that are subject to the rules set out for labour proceedings (i.e. agency disputes, agrarian disputes etc.).

ii) Family proceedings - Judicial separation According to Article 708 of the Civil Procedure Code, in occasion of the first hearing scheduled for parties' appearance the judge shall hear husband and wife, separately and jointly, and then shall attempt to reach a conciliation before continuing the proceedings for their judicial separation.

iii) "Ordinary" court proceedings Optional attempt of parties' conciliation can always take place on the parties' request or on the judge's own motion. In such case the judge will schedule an ad hoc hearing where, should the parties reach a friendly settlement of their dispute, they will sign a conciliation report before the court.

iv) Conciliation before the Justice of the Peace According to Article 320 of the Civil Procedure Code the Justice of the Peace at the first court appearance of parties shall invite the parties to attempt to reach a settlement of the dispute.


Enforceable Solutions Arbitration awards are binding on the parties and enforceable. Article 824 bis of the Civil Procedure Code, as lastly amended by Legislative Decree 40/2006, provides that arbitral awards have "the same effects of a judgment rendered by a national court”. Although this provision resolved the much-debated issue on whether arbitral awards have the effectiveness of a contractual agreement or that of judgements, it is to be noted that arbitral awards still need to be declared enforceable by means of a court decree.

Conciliation report signed by the parties within court-annexed procedures, in labour and in ordinary proceedings, constitutes enforceable orders. In case of conciliation before the Justice of the Peace, conciliation report is generally an enforceable order unless the dispute submitted to the above Judge falls within the jurisdiction of a higher judge. In the latter case, having the same effects of a private deed the conciliation report is enforceable in accordance with ordinary contract law principles.

According to Article 40, para 8, of Legislative Decree n. 5/2003 (see above, para n. 2), conciliation reports signed by the parties and the mediator become enforceable following homologation by the Court within the District where the Conciliation body is registered.

Pursuant to Article 696 bis, para. 3 of the Civil Procedure Code conciliation reports signed by the parties before the expert become enforceable by means of a judge's decree.

Any other settlement agreement reached in mediation is generally binding on the parties and enforceable in accordance with ordinary contract law principles, unless otherwise provided by law.

Practice of Alternative Dispute Resolution

Amongst the viable alternatives to court proceedings, arbitration is widely used, whilst existing forms of conciliation and mediation are seldom used preferred because of widespread doubts on their effectiveness.


Use of ADR. Apart from arbitration, that is widely used, alternative dispute resolutions are not frequently used in Italy, because of widespread doubts of their effectiveness. However, in the last few years mediation - especially that one administered by the Chambers of Commerce - have been taken into a considerable account in an attempt to resolve the problems of the Italian judiciary system (particularly the unreasonable length of the proceedings) in the field of commercial and corporate law. The first non-judicial mediations by private organisations are currently taking place in Italy, although they are not very common in Italy.

The latest reform on civil proceedings (Law n. 69/2009, entered into force on 4 July 2009), with a view to reducing the timing of litigation and decrease the amount of proceedings pending before Italian courts, promoted the use of conciliation, providing that government shall issue a specific set of rules for conciliation of civil and commercial matter, in light of the relevant EU legislative background.


Public Information on ADR. ADR State processes (arbitration and court-annexed figures of conciliation) are regulated by the provisions of the Civil Procedure Code; conciliation for corporate litigation provided by Chambers of Commerce is governed by their own regulations according to the provisions of Legislative Decree n. 5/2003 and by the Ministry of Justice Decrees nn. 222-223/2004; "private" ADR processes (provided by private ADR providers) are governed by their own regulations usually made available on the websites of the relevant administrator.


Accessibility of ADR Procedures. ADR methods are in theory accessible to everyone; however, costs needed for some ADR methods -that are more expensive than the others (i.e. arbitration)- may prevent people from using ADR methods, in practice.

As to "private" ADR, the amount payable for ADR services will vary depending on the nature of the dispute and the time required by the third party or the panel hired to provide the service.

According to the Ministry of Justice Decree n. 223/2004 regarding conciliation for corporate litigation: i) each party shall pay € 30,00 in favour of the conciliation provider for starting a conciliation procedure (see Article 3, para. 2); ii) each party shall pay a sum of money - between € 40,00 and € 10.000,00 - for conciliation's expenses (included mediator's remuneration), calculated by reference to the amount in dispute (see Table A, attached to Article 3).

In general terms, no matter what method of ADR is selected, recourse to ADR methods entails cost and time savings.


National or local mediation/conciliation facilities and organisations The Italian Chamber of Commerce offers a service of conciliation in order to settle disputes between enterprises or an enterprise and a consumer. The web site http://www.conciliazione.camcom.it/ indicates how to apply and illustrates the relevant rules.

There are other associations which offer such service of ADR such as:

Furthermore there are some associations specialised in specific areas e.g. on banking, financing and corporate disputes, such as the Conciliatore Bancario Finanziario.


Industry specific forms of ADR Industry specific forms of ADR are provided in the following industry sectors:

  • insurance and banking, where some companies have created mediation charters or permanent mediator (i.e. National Association of Insurance Companies - "ANIA" - provides a specific conciliation service for all motor policy holders: see the website). Under these charters, a matter is referred to an independent person or panel who gives an opinion on the dispute involved;
  • securities market, where Legislative Decree n. 179/2007 provides for arbitration and conciliation procedures for disputes between investors and financial brokers;
  • telecommunication (Law n. 481/1995);
  • tourism (Law n. 135/2001);
  • intellectual property (Legislative Decree n. 30/2005).

Other specific forms of ADR are provided for the resolution of franchising, family enterprise, corporate and employment disputes. For more details, see above paragraph 2.


  • Industry ombudsmen

The association named Conciliatore BancarioFinanziario offers also a service of disputes resolution by means of ombudsmen.

  • Consumer complaints systems

Examples of such systems are available at the following sites:

http://adoc.org/index/it/conciliazioni/conciliazione-adoc.html;

http://www.centroconsumatori.it/31.html;

  • Non-judicial labour dispute resolution mechanisms

As already mentioned, employment disputes may also be extra judicially settled by means of an agreement to be declared enforceable before the District Labour Committee.

  • ADR used by consumers and employees:

All the ADR procedures outlined above are accessible to consumers. In particular, Ombudsman and some kind of mediation were specifically introduced as a service to customers. Particular processes of ADR are dedicated to resolve labour controversies between employees and employers. These are described in paragraph 4 above. It is to be noted that in order to safeguard consumers' rights, contractual clauses providing for ADR procedures must comply with both Italian and the European provisions and with main case law on abusive clauses. Finally it is worth noting that the recent Italian reform on class action in its first draft provided the faculty for "class members" to attempt conciliation, pursuant to Legislative Decree n. 5/2003. Such conciliation was aimed at settling the specific amount of damages each of the class members were to be awarded in accordance with a class action judgment stating the defendant's liability. However, Law n. 99/2009 which provided a final set of rules on class actions did not include any provision upon conciliation or other ADR methods.

The Social and Environmental Regulation of Business

We are not aware of any initiative of the Italian government aimed at extending ADR methods to the protection of human rights. In Italy environmental mediation is now very rarely used. However, environmental mediation services are provided by some private institutions governed by own regulations such as AttuttAmbiente - Pisa, Italy.

Relevant Mechanisms

Relevant Websites

Keywords

Author

Original Author(s) Lovells Rome This contribution has been written by Daniele La Cognata, Stefania Iannicelli and Alessandro Fabbi

References


Retrieved from "http://baseswiki.org/en/Italy"

Contributor(s): This article was modified by International Bar Association (14), Kyle (1).