ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
cannot be required to testify about the content of the statements made and the information acquired. The outcome of a negotiation assisted by lawyers Negotiation assisted by lawyers may end in: • the reaching of a settlement between the parties, that must be signed by them and the lawyers, who certify the authenticity of the signatures and the compliance of the agreement with mandatory rules and public order; the agreement constitutes an enforceable title and a title for the registration of the judicial mortgage; or • the failure of the negotiation; in this case, a dec- laration of non-achievement of the agreement is drawn up and certified by the lawyers. Cases excluded Negotiation assisted by lawyers cannot be conducted in the following cases: injunction proceedings, includ- ing opposition; • preliminary technical advice for settlement pur- poses; • opposition or incidental cognition proceedings related to enforcement; • proceedings in council chamber; • in civil actions exercised in criminal proceedings; • disputes subject to compulsory mediation; and • disputes concerning contractual obligations arising from contracts concluded between professionals and consumers. Arbitration For general information regarding arbitration please see the Italy Law & Practice chapter in this guide. The key types of arbitration available in Italy are as follows. • Administered arbitration: Arbitration can be man- aged by an organisation, generally referred to as an arbitration institution (or chamber). The rules of this type of arbitration are provided by an external regulatory source prepared by an arbitration centre. The parties must include a reference to the relevant pre-established regulation (or even just to the arbi- tration chamber) in the arbitration agreement.
• Labour Arbitration. • Corporate Arbitration – This is a special form of arbitration dedicated to intra-company disputes. • Financial Banking Arbitrator at the Bank of Italy (ABF) – The ABF resolves disputes between clients (consumers and non-consumers) and banks and/ or financial intermediaries arising from banking and financial operations and services. • Arbitrator for Financial Disputes at Consob (ACF) – The ACF resolves disputes between retail investors and financial intermediaries arising from violations by intermediaries of obligations of diligence, fair- ness, information, and transparency in investment services or activities or in the collective savings management service (investment contracts). Transfer to the arbitration venue of proceedings pending before the judicial authority The parties may jointly apply to transfer ongoing judi- cial proceedings to arbitration. This option is specifi- cally available for civil cases pending before the court of first instance or the court of appeal, provided that the proceedings have not yet reached the decision stage. Such cases must not involve non-disposable rights, nor pertain to matters of labour, social security, or social assistance. By submitting a joint request, the parties may seek to commence arbitration proceed- ings in place of continuing with the judicial process. Preliminary Technical Advice for Settlement Purposes The purposes, the prerequisites and the subject matter Preliminary Technical Advice for Settlement Purposes (“Preliminary Technical Advice”) is a procedure gov- erned by Article 696-bis of the Code of Civil Proce- dure. It involves the issuance of technical advice by a court-appointed consultant, aimed at facilitating rec- onciliation between the parties before the initiation of proceedings on the merits, thereby helping to avoid litigation. Notably, Preliminary Technical Advice can be sought regardless of the urgency of the matter or the risk of losing evidence relevant to potential future proceed- ings. Consequently, the early formation of evidence is not merely a tool to support eventual litigation but is primarily intended as a means to prevent it.
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