ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
Articles 1137, 1175 and 1176 of the ICC impose on any negotiating party the obligation to act fairly and in good faith throughout the negotiation and perfor - mance of a contract. As a result, many types of con - duct are considered unlawful, triggering civil liability – for example, providing incorrect information to the other party. In addition, if an agreement has been entered into using trickery and deception intended to mislead the other party, under Articles 1439 and 1440 of the ICC, the agreement may be cancelled (in cases where the deceit has been so material that, without it, the other party would not have entered the relevant contract) – with the right for the other party to seek compensation for the damages suffered, as well as restitution of any amount paid. If the deceptions were not so material, but still able to impact the terms and conditions of the contract, the agreement remains valid; however, the other party may seek damages to restore the con - tractual balance. Other provisions protect from misrepresentation in other areas in corporate laws – for example, misrep - resentation in financial statements, corporate com - munications and/or accounting documents – where offences are sanctioned under criminal law. Additional consequences derive from misappro - priation, misrepresentation, disguise and other con - cealment of assets, as well as dissipation occurring within bankruptcy proceedings, where there is greater need to protect the interests of creditors who may be deprived of resources, and guarantees to satisfy their claims. 1.2 Causes of Action After Receipt of a Bribe Under Italian law, bribery constitutes a criminal offence in cases where it involves public servants and offi - cials, as well as in cases where it involves agents of a company (see 1.1 General Characteristics of Fraud Claims ). Thus, the offender who has received a bribe and the party paying, giving or promising the bribe are both subject to the same criminal sanctions, including imprisonment. In any of these cases, the offender can be prosecuted directly by the State. However, the victim of a bribing
scheme may still have an interest in reporting offences to competent authorities, thus facilitating the discov - ery of the crime as well as allowing the performance of investigative activities aimed at uncovering the offence (and the offenders), and the collection of all relevant evidence. The prompt involvement of public prosecution offices may also facilitate the recovery of sums and/or assets that have been involved in the bribery. A claimant may also have the right to initiate a civil claim against the offender (as well as anyone who received the bribe) to recover any damage caused by the latter, under the principles of tort liability of people committing unlawful actions causing undue damages to others (Article 2043 of the ICC). Indemnification may be obtained either by starting civil proceedings or by asking for indemnification in a criminal trial related to the suffered offence (see 2.5 Criminal Redress ). If the offender is an agent of a company, the com - pany may also bring actions for mismanagement and breach of fiduciary duties, forcing the removal of the offender from the company’s management as well as entitling the company to recover damages suffered (including reputational damages). 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts According to Article 110 of the Italian Criminal Code, when several persons take part in the same offence, all of them may be sanctioned for the relevant offence without distinguishing between the author, co-author, instigator, facilitator, etc. Thus, each co-operator is not only liable for their own actions, but also for those actions committed by the other parties, if intended to achieve the agreed purpose. In the event the commission of an offence is uninten - tionally facilitated by someone, the latter may be liable for negligent misconduct (occurring in the relevant cir - cumstances) and/or for breach of professional duties. A typical statutory provision concerning assistance and facilitation of the fraudulent acts of another is established under Article 648 of the Italian Criminal Code, which punishes (with imprisonment of up to eight years) anyone who – in order to secure a profit
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