Litigation & Arbitration
Nctm’s litigation department is second to none among Italian law firms. Litigation counts for about 25% of the firm’s work and is central to the firm’ s culture.
Nctm has the resources to manage complex national and cross-border litigation in all areas of corporate law as well as litigation resulting from the spate of recent laws establishing remedies against companies.
Nctm provides assistance in the management of relationships in the pre-litigation phase, evaluating the “merits” of the dispute, as well as in ordinary and special judicial proceedings, national and international arbitration. Alternative Dispute Resolution with particular reference to settlement and mediation.
The main fields of activity of the department are:
- corporate and commercial litigation, including those involving public companies and bodies established under specific rules
- litigation involving banks and financial brokers
- litigation in disputes related to tenders as well as to contracts
With reference to legal procedures, Nctm can provide legal assistance for the following :
- property and personal damage claims, including product liability claims and recall campaigns
- insurance related disputes
- inheritance litigation
- debt collection – consumer credit
The UK is nothing if not pragmatic. The pragmatism has sometime been referred to as perfidiousness: perfidious Albion. What is sure is that the UK will approach the divorce with the EU in a very pragmatic fashion. It will seek to develop bi-lateral relations with its direct trading partners. It will seek to revive the trade pre erences in the Commonwealth. It will seek independent influence in all international bodies.
The new institution of assisted negotiation, as structured by the Italian legislator, has a lot in common with mediation. Indeed they share negotiation techniques and the spirit that should characterise the parties when trying to reach an agreement, although with the disadvantage that the advice from a third party professional specialized in the amicable resolution of disputes (the mediator) is not available.
Hence, the lawyer and the parties are the only protagonists. Nonetheless, the absence of an independent third party does not prevent the settlement agreement from being enforceable.
Assisted negotiation was introduced in Italy by Decree Law no. 132 of 12th September 2014, on the basis of the French model.
In its turn, the French legislator has taken inspiration, by its own admission, from the United States models, where Alternative Dispute Resolution (ADR) is widely used. Their theories and the positions adopted by scholars have been elaborated since the 70’s: the expression ‘Collaborative Law’, recalled by the French legislator, was originally developed in North America.
Indeed, the Rapport de la commission sur la répartition des contentieux stated that the Commission “wanted to take inspiration from the US practice, known as Collaborative Law, to suggest the birth in France of a brand new way to resolve disputes, the Procédure Participatif of negotiation assisted by a lawyer”.
So, Italy has adopted the French model, which in turn adopted the USA model, not so much with regard to procedure but because of the “philosophy” of dispute resolution out of court. What in France is called “Collaboration Charter”, in Italy is the negotiation agreement: the parties agree to cooperate in good faith and loyally to amicably resolve the dispute, with the assistance of one or more lawyers.
Therefore the parties, with the professional assistance and under the responsibility of a lawyer, will enter into an agreement on the procedure to be followed at the later stage, that is during the real negotiation.
In order to protect the rights of the parties, the signing is subject to quite strict formal requirements that at the subsequent stage, i.e. the real settlement agreement, may make such agreement enforceable through the signature of the parties and of the lawyers.
It is important to underline the difference between this procedure and the settlement provide for by the Italian Civil Code, even if in some cases similar rules may apply (for example, grounds of invalidity could be the same).
Negotiation is not about making reciprocal concessions on the legal position of the parties, but, like mediation, it is a dialogue based on the disputed interests.
It is often said that lawyers have always negotiated, and the law is simply formalising something that has always been done in the tribunal’s corridors. It is not exactly like that. As a matter of fact, during assisted negotiation, based on the legislator’s proposal, the lawyer should master the same techniques used in mediation. This implies the preparation of a negotiation strategy with the client, the understanding of interests involved and focusing on them rather than on the legal position of each party, as well as the investigation of the most satisfactory framework for the client’s prerogative.
The project seems hard to realize even introducing an adequate education, an aspect that, moreover, has been neglected by the law, but the legislator’s intent was that to reduce the number of trials, in the perspective of a faster and more efficient justice.
Thanks to the introduction of assisted negotiation, “de-judicialisation” (a neologism for a problem that is certainly not new) should have undergone a decisive acceleration: according to the technical report accompanying the decree, litigations taken out of court would be reduced by 35,000 per year. Moreover, it was calculated that the combined effect of mediation and assisted negotiation resulted in the reduction by 8% of civil cases listed before the Court between 2013 and 2015.
However, an important difference should be noted between the Italian and French way of introducing this institution. In Italy the above-mentioned decree law is made up of 10 articles, while the France law consists of 28 articles. It should be further pointed out that the procedure for the enactment of the decree law in Italy is still lacking the so-called AIR (Regulation Impact Analysis); this is a procedural anomaly that gives rise to doubts about the genesis of the regulation, and about the real potential compared to the intention of streamlining cases taken to court.
Assisted negotiation has become a condition for the admissibility of disputes for damages caused by the use of cars and boats, and for disputes concerning the payment of amounts lesser than 50,000 euros. This provision is similar to the one concerning mediation. The logic is absolutely clear: an attempt to reduce disputes by eliminating those in greater number and with a scarce value, at least from an economic point of view. And this also gives us an idea of how such provisions were structured in a way that is very close to compulsory mediation.
For sure, considering the sequence of reforms aimed at reducing the overwork of courts, one cannot say that intervention criteria have been consistent and well-concerted: apparently the legislator is more worried about controlling the justice crisis than about analysing the complex (more ethical and cultural, rather than legal) implications of the amicable settlement of disputes.
There is a lack of culture and of a systematic development, not only with regard to assisted negotiation, but to ADR in general, which remain for many people an imposition more than an opportunity.
Implications on how to handle a dispute are potentially very relevant: suffice it to make some remarks on the new role of the lawyer and on the centrality of the participation of the parties in the negotiation procedure.
As we mentioned at the beginning of this article, assisted negotiation does not contemplate the presence of a third party, whether judge, arbitrator, or mediator. Hence the expertise and professionalism of the lawyer is of extreme importance, whose attitude must necessarily change: from counsel for the defence he turns into interests negotiator. Therefore, he must be familiar with negotiation and communication techniques. If we talk about legal positions only, assisted negotiation is useless (it would simply be a duplication of the settlement). The negotiation must be prepared as a mediation, or even with greater attention to communicative aspects and negotiation techniques, due to the absence of a mediator.
In such respect, reference can be made to the still open debate on the inadequacy of the training required to qualify as mediator (50-hour courses, even less for those already registered with the BAR).
The role of the lawyer is innovative also with regard to the provision that makes the same professionally responsible not only for the authenticity of the signatures to the agreement, but also for the compliance of the final settlement agreement with mandatory regulations and public order. Moreover, the trial consequences of the negotiation may be decisive for the subsequent development of the proceedings.
The final agreement must be signed by the parties and by the lawyers assisting them in order to be an enforceable instrument and for the registration of the lien by court order. Moreover, the lawyer, upon his appointment, has an ethical duty to inform the client about the possibility to have recourse to assisted negotiation.
Outlining the rules that impose new duties for the lawyer, we understand and reiterate the need for training for negotiators, which was contemplated in the draft bill but then was not mentioned at all in the final text.
The virtuous model is that of the US: every year the American Bar Association provides a general guide for lawyers, but also for public entities, because citizens must know what to expect from mediation, or from the lawyer, if they decides to appoint one.
It is important indeed to make the party feel responsible in the dispute. In the USA, for example, legal assistance during mediation is not compulsory. Instead, in these phases of the amicable settlement of disputes, the participation of the party involved in the litigation has a central role because it allows to discover the actual interests behind legal positions. Another positive aspect is that avoiding courts may often enable the parties to continue their relationship in a constructive way.
Finally, we need to mention the role of the judge, who may evaluate the behaviour of the parties when a legal proceeding is started as a result of a negotiation agreement. In case of non-reply to the request for negotiation by 30 days, or if it is refused, the judge may assess the parties’ behaviour pursuant to article 96 of the Italian Code of Civil Procedure (aggravated responsibility) or article 642, first paragraph, of the Italian Code of Civil Procedure (on the concession of provisional enforcement).
Hence, it is also in the parties’ interest, if the circumstances fit, to carry out the negotiation.
First and foremost, a most effective training of the involved parties is necessary in order for assisted negotiation, in particular, and methods for alternative dispute resolution, in general, to achieve the effects desired by the legislator.
Still referring to the US model, one must admit that not much of the ADR is left in the hands of lawyers. Procedures autonomously managed by lawyers have not had positive results, at least in the last 50 years: in the 80’s the US discovery was taken away from the lawyers and passed under the control of judges, also for the high costs generated by the same.
On the other hand, it is true that the US experience in the field of ADR is much more ancient. But in history, those who come after have the possibility to make improvements, as stated by Carrie Menkel-Meadow, one of the most expert mediator in the world, during a meeting held at the Arbitration Chamber in Milan.
So it is possible that giving the right attention to the diffusion of the “mediation culture”, or we should say to the amicable resolution of conflicts, could make the Italian model successful.
 In France the Procédure Participatif was introduced by Law 2010–1609 of 22 December 2010.
 See in such regard Cuomo Ulloa, Modelli di conciliazione nell’esperienza nordamericana” in Rivista Trimestrale di Diritto e Procedura Civile, issue no. 4, 2000, page 1283, highlighting the differences between the European and the American model, and little coherence in the latest reforms. We suggest to read the book ‘Getting to yes’ by Ury and Fisher, 1981, in order to have an idea of the principles guiding ADR according to the main school, Harvard.
 L’ambition raisonnée d’une justice apaisée, 2008, report by Serge Guinchard, president of the Commission par la rèpartition de contentioux. After only two years from its entry into force in France, negotiation has not obtained the awaited results, although some influential and triumphalist opinions (FRICERO) maintained that: “Cet objectif conduira à une déjudiciarisation de certains contentieux de masse, et la matière familiale en est une illustration topique!” (See for more details Calcagno, La negoziazione assistita da uno o più avvocati e la procédure participative, Proceedings of the conference of Vicenza, 4 February 2015). The report is available at the link http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/084000392.pdf.
 Article 2, paragraph 1, Decree Law, converted with modifications by Law no. 162 of 10 November 2014.
 Article 2, paragraph 1, of the mentioned Decree Law requires for the negotiation agreement the provision of a term for the procedure, the object of the dispute and the written form. Moreover, article 4 states that the agreement must contain the warning that the failure to reply to the request within 30 days from its receipt, or its refusal, may be taken into consideration by the judge for the purposes of awarding legal costs and of the provisions of articles 96 and 642, first paragraph, of the Italian Code of Civil Procedure.
For an in-depth analysis of negotiation agreement and formal requisites, as well as for a critique of excessive formalism, see Bolognesi, Il “contratto” sulla procedura di negoziazione assistita da uno o più avvocati, in www.judicium.it.
See Ruvolo, Negoziazione assistita in materia civile, casi e questioni, available at the link http://www.ca.milano.giustizia.it/allegato_corsi.aspx?File_id_allegato=1950.
 With regard to mediation techniques, the text by Marsaglia, De Berti, Gestire negoziazione e mediazione, guida per l’avvocato, Altalex, Milan, 2015, offers concise and effective guidelines.
 “Thinking that assisted negotiation may be simply reduced to an assisted settlement, no matter how complex, is not correct if one affirms to take French procedure as basis; (…) then, as far as France is concerned, settlements could be homologated already since 1999 and so there was no need to reassert regulations already contemplated by the legislation system.” Dossier sulla negoziazione assistita, in mediaresenzaconfini.org.
 Matteucci, Mediazione e negoziazione assistita nel 2015: i primi dati statistici, on www.blogconciliazione.it.
 Dossier sulla negoziazione assistita, published by mediaresenzaconfini.org.
 Article 3 of the mentioned law, compared to and in analogy with article 5, paragraph 1-bis, of legislative decree 28/2010, as amended by decree law 132/2014.
 See in this respect Biavati, Note sullo schema di disegno di legge delega di riforma del processo civile, in Rivista Trimestrale di Diritto e Procedura Civile, issue no. 1, 2015, page 209.
 Cuomo Ulloa, Modelli di conciliazione nell’esperienza nordamericana, in Rivista Trimestrale di Diritto e Procedura Civile, issue no. 4, 2000, page 1283.
 This statement is taken from the Dossier sulla negoziazione assistita, published by mediaresenzaconfini.org, on the basis of the declarations by Laurence Junod-Fanget, lawyer in Lyon and Présidente de la Commission des Modes amiables de résolution des différends, and Dominique Lopez, one of the most important France negotiation lawyer.
 Dossier sulla negoziazione assistita, published by mediaresenzaconfini.org.
 Borghesi, La delocalizzazione del contenzioso civile: sulla giustizia sventola bandiera bianca?, lesson held on 28 November 2014 at the law division of the University of Modena and Reggio Emilia, in www.judicium.it.
 Dossier sulla negoziazione assistita, published by mediaresenzaconfini.org.
Europe Must Go On
The 60th anniversary of the Treaty of Rome sees the EU much changed from its early origins. We have moved from an economic community to a Union based on civil and human rights and the values common to the peoples of Europe. It has been, and is, a great success.
However it is clear that the Union is not without its troubles on this important anniversary. The Brexit negotiations are about to start. There are nationalist and decentralizing tendencies in many Member States and important elections in Germany and France. There are real problems of immigration and the absence of, or the uneven distribution of, economic growth.
These problems should not daunt us. Our fathers in the integration process faced greater problems. They sought to make peace and to make an institution to guarantee peace from the ashes of the most destructive of European wars.
What we must do is face up to our problems and resolve them. We have great shoulders to stand on. We have been given the evolving EU treaties, the Single Market, a strong Court of Justice in Luxembourg, good competition law, the rights of citizens, in other words a strong legal framework.
This is no time for faintheartedness. We must move on with courage and ensure that the Union is with us for more than another 60 years.
In this issue, we analyse a decision of the Italian Consiglio di Stato according to which the publication of applications for renewal of existing maritime port concessions in the EU Official Journal is not required. Any third party wishing to submit competing bids is however guaranteed by the possibility of preventively inquiring about the expiry of a concession as well as by the investigation conducted by the Port Authority (today Port System Authority), which must comply with the principle of selecting the tenderer offering the «best guarantees for a profitable use of the concession».
We then examine the differences in Italian law between a contract of carriage and a procurement contract for the supply of carriage services. It is important to properly classify the type of contract, and here we explain why.
Let us then examine two recent judgments of the Italian Regional Administrative Courts. The first one is on the possible ways of awarding a maritime concession. The second one relates to the applicability of the Italian Public Procurement Code to the management of intermodal freight terminals, the unavoidable consequences of which are summarised here.
In light of the forthcoming entry into force of the IMO Convention for the Control and Management of Ships’ Ballast Water and Sediments, we look at the impact it is expected to have on the shipping sector. One of the major problems is that, to date, there are no clear indications on how to make ships compliant with the new standards. Moreover, there are countries who have more stringent regulations than the IMO Convention. The risk is therefore to invest in equipment that can be deemed unsuitable at a later stage.
A recent ruling of the Italian Supreme Court allows us to briefly discuss the issue of non-payment of insurance premiums and consequent suspension of cover. The Supreme Court confirmed that insurance coverage applies if an insured event occurs within the «grace period», regardless of whether the next premium instalment is paid.
Concerning airports, the Italian Supreme Court opened the door to possibly finding liability on the part of ENAC (the Authority supervising airport activities and air transport in Italy) in case of airplane damage caused by poor maintenance of taxiways.
Finally, we conclude with our usual review of the news from the world of maritime and port labour. The most important news is about the renewal, in Italy, of the National Collective Bargaining Agreement for shipping agencies’ executives, which brought some improvement to the current situation.
We want to thank our colleagues at Nctm Brussels’s office for their contributions highlighting the most significant actions taken by EU institutions in the international shipping and trade sector.
You will also find a list of our events taking place at our Milan and Rome offices, in addition to the usual update on our firm’s activities over the past two months.
According to the Court of Cassation a concordato plan not describing in detail how it can be implemented is not feasible
The Court of Cassation (decision No. 4915 of 27 February 2017) lowered the threshold allowing the Bankruptcy Court to review the feasibility of the concordato preventivo proposal.
Does a concordato proposal need to assign all future earnings to the creditors ?
The Court of Florence (November 2, 2016) confirmed that the debtor can retain part of his assets, with a view to support the company’s recovery and in derogation to principles of liability of the debtor
Cram down pursuant to Art. 182-septies of the Italian Bankruptcy Law, if the agreement is more convenient for the bank than bankruptcy liquidation
A ruling of the Court of Padua of 31 December 2016 is compared with few other known Court decisions regarding the extension of the effects of a debt restructuring agreement to dissenting financial creditors
In this issue, we explore the new “Project Review” rule provided for by Article 202 of Italian Legislative Decree No. 50/2016, which allows the State to revoke funding previously granted for projects which – upon later and more in-depth review – are found no longer to meet the cost benefit ratio. What will the impact of this new rule be on port infrastructure projects in Italy? Are we at the beginning of a new era? We come back to the Italian port reform issue, this time to examine the ordinance power vested in the President of the Port System Authority. Analysing a judgment of the Regional Administrative Court of Liguria, we note how case law anticipated the reform when recognising the ordinance power of the President of the Port Authority even in the absence of an express statutory provision. We then deal with the need for prior review by the EU Commission of State funding projects involving upgrade works on EU ports. On 23 January 2017 the new EU Regulation on port governance was approved. We give a first insight on the main issues covered by the Regulation: financial transparency and the provision of port services. We examine the request to amend Directive 2009/13/EC, aimed at delivering better working conditions to seafarers in accordance with the amendments made in 2014 to the Maritime Labour Convention (MLC / 2014). We also provide some updates on maritime employment agencies. We then focus on a recent decision of the European Commission on State aid, which further helps improve the general understanding of the criteria to be met in order for State aid in port and airport matters to be deemed compatible with EU law. Finally, we draw our attention to an interesting decision of the Consiglio di Stato regarding the interruption of airport handling services, which is forbidden when deemed detrimental to the public interest in operation of scheduled air transport services.] We want to thank our colleagues at Nctm Brussels’s office for their contributions highlighting the most significant actions taken by EU institutions in the international shipping and trade sector. You will also find a list of our events taking place at our Milan and Rome offices, in addition to the usual update on our firm’s activities over the past two months.
As we settle into 2017 the drama of Brexit and Trump seem to have eased somewhat. While the drama might have lifted it doesn’t mean that the complexities that these two phenomena have introduced and are introducing into the practice of law have gone away. In fact, the more we reflect on what needs to be done to achieve Brexit the less clear the situation is. This week President Trump will outline what he means by the Wall and taxes on imports of goods. From a WTO law point of view it can only be disruptive and even destructive. The drama might have gone but the work is only beginning. In this issue we have a range of contributions covering how the Russian constitutional court has reacted to the European Court of Human Rights rulings in favour of the owners of Yukos, the OECD’s review of its own bribery rules, the EU’s new proposed ePrivacy Regulation, how the European Court of Auditors confirms our understanding of the responsibilities and obligations of Port Authorities in relation to concessionaires. We explain the new Italian Save the Banks decree and show how the EU Commission has a strong role in every step of the process and look at how the Commission proposes disciplining insurance distribution agents.