ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
• Financial Banking Arbitrator at the Bank of Italy (ABF): The ABF resolves disputes between clients (consumers and non-con- sumers) and banks and/or financial inter- mediaries 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, fairness, information, and transparency in investment services or activities or in the collective savings manage- ment service (investment contracts). Transfer to the arbitration venue of proceedings pending before the judicial authority The parties may jointly apply to transfer ongoing judicial proceedings to arbitration. This option is specifically 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 assis- tance. By submitting a joint request, the parties may seek to commence arbitration proceedings 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 Pur- poses (“Preliminary Technical Advice”) is a pro- cedure governed by Article 696-bis of the Code of Civil Procedure. It involves the issuance of technical advice by a court-appointed consult- ant, aimed at facilitating reconciliation 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 poten- tial future proceedings. Consequently, the early formation of evidence is not merely a tool to sup- port eventual litigation but is primarily intended as a means to prevent it. Under the Code of Civil Procedure, Preliminary Technical Advice can be employed to assess and determine claims arising from the non-per- formance or defective performance of contrac- tual obligations, or from torts. However, in 2023, the Constitutional Court expanded its scope of application. It held that Preliminary Technical Advice may now address claims arising from any act or fact capable of producing legal claims under the legal system. This decision aligns with the legislative trend towards strengthening ADR mechanisms, underscoring the importance of this procedure in facilitating out-of-court settle- ments. The technical consultant’s assessment is con- fined to the facts in dispute and does not extend to the law applicable to the case. Similar to advice provided in ordinary proceedings on the merits, the consultant may determine: • the cause of the damage claimed by the applicant; • the identity of the applicant; and • the identity of the party against whom the assessment is sought, provided that party consents. It is important to note that the consultant is not authorised to carry out investigative activities as part of this procedure.
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