Litigation & Arbitration

As one of the major independent Italian firms, NCTM boasts a litigation department of over 70 professionals providing assistance to clients from a variety of sectors. The team recently handled numerous litigation cases relating to financial, tax and product liability issues.
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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
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1/06/2017
Administrative & European Public Law - Litigation & Arbitration

In 2008 the European Union adopted the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters (2008/52/EC) on mediation in civil and commercial disputes. The objective is to “create a workable, light-touch Directive, which reflects existing guidelines and best practice and can serve to encourage the wider use of mediation across the EU. The Directive was not the first attempt to promote mediation. The EU  has published a Green paper, two Directives on Alternative Dispute Resolution (ADR) in consumer disputes and Online Dispute Resolution, and has sponsored the drafting of a European Code of Mediators. In addition, at the supranational level, UNCITRAL had approved a set of conciliation rules in 1980, and a model law in 2002 on international commercial conciliation.

The EU Directive requires Member States to establish mediation systems in cross-border disputes, but also invites Member States to consider if such systems can be made applicable to domestic matters, even if some Member States had already introduced non-adjudicative methods in their legal systems. The Directive covers the essential issues concerning mediation, within a lightly-regulated framework: with regard to confidentiality (Art. 7) what is disclosed in a mediation session must not be disclosed later by the parties in a judicial or arbitral proceedings (exceptions may be established only for the protection of fundamental public interest, such as personal or psychological integrity); limitation periods will be suspended during mediation (Art. 8); judicial enforceability of the settlement agreement must be guaranteed (Art. 6).

Three approaches to the promotion of mediation exist today in continental Europe[1]: the “pragmatic approach” exemplified by Denmark and the Netherlands, and consisting of first experimenting with pilot-projects, followed by regulation; the “cultural approach” exemplified by Switzerland, where the education of lawyers to non-adjudicative methods is paramount, and where a number of traditional conciliation practices within the judiciary itself render litigation a “last resort method”; the “legalistic approach” exemplified by some major European states, among them France, Spain and Italy, where first a comprehensive regulation on mediation is established, and then the results are evaluated.

Once the choice to regulate has been made, there can be different ways to approach regulation itself: 1) market regulation (generally recommended only for high-end commercial disputes); 2) self-regulation by a community or industry; 3) formal regulating framework, defined by legal parameters; 4) formal comprehensive legislation.

The EU approach has been to create a “formal framework”. Incentives, sanctions and detailed regulation have been left to the Member States to decide. The formal framework is therefore a flexible one, allowing to adopt a variety of mechanisms. Out of the 28 EU members, 22 have established an accreditation system for mediators, and 15 provide legal aid for destitute litigants in mediation. Only 10 Member States allow the judge to order the parties to attempt mediation before commencing litigation, and just 6 States have some form of mandatory mediation on the basis of the disputed matter[2].

EU Member States in fact are not prevented from requiring that parties participate in a mediation proceeding, or to an informative session on mediation, as long as the right to having one’s day in court is preserved, and the proceeding is not exceedingly long or expensive[3]. Compelling mediation is a less than optimal solution, but in the short- to medium-term, it might be considered the only option to jumpstart mediation in the legal system.

Training and selection of the mediators is not regulated by the Directive. Member states have to ensure the quality of mediators by encouraging training and the adoption of codes of conduct, and by providing quality control on mediation procedures. However, only 5 Member States include mediation in the legal education curriculum, and in most countries, a 40 to 50 hours-course in generally sufficient for accreditation. The aspect of training and job incentives is going to be crucial if mediation has to become mainstream, as the European institutions hope. Virtually all European countries leave the fees to be paid to mediators to the market, since they provide no court-sponsored or financed mediaton programmes. This may be a problem where these fees are instead controlled or capped, such as in Italy. By not committing the financial resources that are needed to reneder this service commercially viable, States may derail the ADR market. In the first years after the Directive, a large number of mediators were accredited, and therefore most mediators still mediate only a handful of cases per year. As a result, where mandatory mediation is established together with price control, civil and commercial mediators work virtually pro bono.
Mediation legislation has now been implemented in all Member States, but for some years the inflow of mediation proceedings has been limited to say the least, as it was in the past, with the notable exception of the few countries where mandatory mediation was introduced[4]. Some Member States have started a discussion to modify legislation, and have set up opt-out systems, where the parties must see a mediator in person, before deciding explicitly that they do not intend to take advantage of the process: if the party and/or their lawyer do not comply with this obligation, the judge may later award some of the legal costs to the counterparty, no matter what the decision on the dispute is.

Resorting to mediation implies a change in the legal culture, which can only be achieved gradually. The path towards a more balanced use of adjudication to resolve indiscriminately all types of conficts, will probably take longer than anyone expected.

[1] Alexander, N. (2008), Mediation and the Art of Regulation. Queensland University of Technology Law and Justice Journal, 8(1), 1–23.

[2] For a comprehensive comparison table on mediation legislation in the EU member countries, see: Schonewille, M., & Schonewille, F. (2014), The Variegated Landscape of Mediation. A Comparative Study of Mediation Regulation and Practices in Europe and the World. The Hague: Eleven International Publishing.

[3] Judgment of the Court (Fourth Chamber) of 18 March 2010. Rosalba Alassini v Telecom Italia SpA (C-317/08).

[4] De Palo, G., D’Urso, L., Trevor, M., Branon, B., Canessa, R., Cawyer, B., & Florence, L. R. (2014), “Rebooting” the mediation directive: assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU. Retrieved from http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET%282014%29493042_EN.pdf.

27/04/2017
Litigation & Arbitration

With a another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).

Decree Law n. 168/2016 was converted into law on October 25, 2016 (“L. 197/2016”) and contains a series of amendments aimed at facilitating a quicker resolution of disputes before the Supreme Court.

In particular, the legislator intervened through:

  • the attribution to the President of the Supreme Court and to the Presidents of the Chambers of the Court of the power to issue a presidential preliminary order to decide questions that, before the amendment, required a decision on behalf of the collegiate body, that is:
  • the order to serve or renew the service of the challenge of a decision in indivisible claim (art. 377, para. 3, code of civil procedure);
  • the declaration of the extinction of the proceedings in case of renouncement and in the other cases provided for by the law, if the date for the decision has not been fixed (art. 391, para. 1, code of civil procedure);
  • the extension of the scope of application of the proceedings in chamber (so called “camera di consgilio”), which becomes the “general” procedural type of proceedings, with consequential reduction of the discussions in a public hearing to mere “residual” hypotheses: if, before the amendment, the proceedings in chamber were held only in the cases expressly provided for by art. 375 of the code of civil procedure, with the entry into force of the new legislation, the Court decides in camera di consiglio (with the obvious exception of the cases in which the President can issue the presidential preliminary order, see above) not only in the cases already expressly provided for by art. 375 code of civil procedure, but also “in every other case, save when the discussion in a public hearing is appropriate, given the particular importance of the legal issue discussed” (art. 375, n. 5, code of civil procedure);
  • the limitation of oral discussion in the proceedings before the Supreme court: if, before the amendment, oral discussion was admitted as a general rule (including in the proceedings in chamber), after the last reform, oral discussion is admitted only if the recourse needs to be decided before a public audience (art. 379 code of civil procedure) (thus, as mentioned, only in residual hypotheses); in every other case in which the recourse is decided in camera di consiglio (which is now the general rule), oral discussion is no longer admitted (arts. 380-bis, 380-bis para. 1, 380-ter code of civil procedure).

If the extension of the scope of application of the proceedings in chamber and, more importantly, the attribution to the President of the Supreme Court and to the Presidents of the Chambers of the Court of the power to decide certain issues with a presidential preliminary order can both be seen as adequate innovations to allow a more rapid resolution of the proceedings before the Supreme Court, the limitation to the admissibility of oral discussion does not seem to have the same impact to that end, and instead affects a right which, to this day, has always been recognized to all parties as a general rule.

In any case, the (eventual) positive effect of the reform on the rapid definition of the proceedings before the Supreme court is encouraged by the application of this new legislation not only (i) to the recourses filed after the entry into force of the reform (i.e. October 31, 2016), but also (ii) to the recourses filed on the date of entry into force for which “the hearing or the convocation in camera has not yet been fixed”.

 

This article is for information purposes only and is not intended as a professional opinion. For further information please contact Roberto Munhoz de Mello (roberto.demello@nctm.it).

27/04/2017
Litigation & Arbitration

The Court of Milan, with reference to the purchase of shares of a general partnership, has recently addressed the question of the mistake on the value of the share.

These are the facts:

  • a contract of purchase of shares of a general partnership is concluded;
  • the seller asks for and obtains an injunction for the payment of the price;
  • the buyer opposes the injunction and, as a counterclaim, asks the annulment of the contract, on the ground that it was concluded by an essential mistake, pursuant to art. 1429, para. 1 n. 2 of the Italian civil code: the seller maintains, in particular, that he decided to buy the shares after the seller showed him several documents (the so-called “informal balances”), with which the seller told the buyer than the company had a series of clients and an economic value, that did not correspond to the real situation of the company;
  • the seller appeared before the court and asked the Judge to confirm the injunction and to reject the buyer’s claims: an important point is that no guarantee was ever given with reference to the value of the share sold.

In light of the above, the Court has had to decide if the mistake on the company assets of a general partnership (or, in any case, on the value, and therefore on the quality, of a company share) can be qualified as an “essential mistake” pursuant to art. 1429, para. 1 n. 2 of the Italian civil code.

The answer was negative.

The Court decided, in fact, that the seller had not given the buyer “any guarantee on the quality of the assets part of the company, nor in relation to the capital solidity of the same”.

With the examined ruling, the Court of Milan has aligned itself with the Supreme Court case-law (cf. Supreme Court ruling of July 19, 2007, n. 16031, quoted in the reasoning of the judgment, even if the ruling relates to the sales of shares of a company limited by shares), according to which the purchase of shares has, as an immediate object of the contract, the partnership itself. The corresponding quota of the corporate assets is only a mediate object, with the consequence that the annulment (on the ground of an essential error) or the resolution of the agreement (due to the lack of a quality of the object of the contract) can be normally asked only if an express guarantee on the value of the assets and their quality has been given.

 

This article is for information purposes only and is not intended as a professional opinion. For further information please contact Daniele Griffini (daniele.griffini@nctm.it).

27/04/2017
Litigation & Arbitration

The Supreme Court decides again  the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.

Usually, as practice in the banking and finance relationships, execution of the agreement does not occur with the exchange of the bank’s proposal and the following client’s acceptance, but with subscription, by the bank’s representative and by the client, of two identical originals. The time of the execution, each party keeps the original signed by the other: therefore the client has the copy signed by the bank’s officer and the bank has the original signed by the client..

In this framework, in the context of the litigations brought by investors in order to obtain the recovery of the invested amount, without a valid master agreement – the same situation occurs in respect of claims brought by account holders in order to obtain the recovery of the amount allegedly received and unduly retained by the banks as, inter alia, compound interests and usury –  it usually happens that the client does not file, in the judicial proceedings, the copy of the agreement object of the dispute, meanwhile the bank entries appearance filing the only available copy of the agreement: indeed, the bank have the copy of the agreement signed exclusively by the client, without the signature of the bank’s representative. Consequently the investors (or the account holders) often contest (challenge) that the only client’s signature is not sufficient to comply with the formal prerequisites of the agreement, i.e. these agreements need to be written in order to be valid (so called forma scritta ad substantiam). By such assumption it follows that, with respect to investment relationships, the related transactions are null and void and, with respect to bank accounts relationships, the lack of specific agreement on the economic arrangements applied by the bank grounds the voidness of the contractual relationship itself.

The decisions of the Supreme Court we are commenting are included in the regulatory framework of the Italian Banking Law (“I.B.L.”, “Testo Unico Bancario”): pursuant to art. 117 I.B.L. “the agreements are executed in a written form and a copy is delivered to the clients” “in the event of lack of written form the agreement is null and void”; and pursuant to art. 127 I.B.L “the voidness provided by such article benefits only the client and may be raised by Judge’s own motion

The main issue, therefore, is whether the filing by the bank of the agreement’s copy signed exclusively by the client ,  is equivalent to the joint signing, thus sufficient to comply with the prerequisite of the written form, as stated by laws.

The previous interpretation of the Supreme Court (Supreme Court 22 March 2012, n. 4564) stated that the “single signature agreement ” can be considered valid provided that: (i) the agreement includes the wording “a copy of such agreement has been delivered to us” or “we are aware that a copy of such agreement is issued duly signed by your representatives”; or (ii) the filing in the civil proceedings of the agreement’s copy by the bank follows to the single client’s signature of the agreement; or (iii) the expression of interest by the bank to make use of the agreement itself, as a result of the multiple execution acts made by the same bank during the contractual relationship follows the single client’s signature of the agreement. According to the Supreme Court’s decision, the prerequisite of the written form could be considered complied with even in the event of lack of copy of the agreement signed by the bank’s representatives. According to such decision there was no need of joint and simultaneous signing.

The Supreme Court, with two recent “twin” decisions concerning the negotiations of securities (Cass. civ., 24 March 2016, n. 5919 e Cass. civ.27 April 2016, n. 8395) overrules its previous interpretation and states the validity of the agreement signed only by one party. In particular, according to the Supreme Court, the wording “a copy of such agreement has been delivered to us”, or “we are aware that a copy of such agreement is issued duly signed by the bank’s representatives”, does not constitute a confession (since it doesn’t concern the event of a loss, without negligence, by the bank of the document necessary to provide evidence, pursuant to articles 2724 n. 3 and 2725 of the Italian Civil Code) and thus it is not sufficient to give evidence of the compliance with the prerequisite of the written form. Moreover, the parties’ behaviour during the contractual relationship cannot replace the written agreement (consensus) required by the law. In  light of the above, the filing before the Court, by the bank of the agreement without the signature of the bank’s representatives constitutes an event equal to the signature, thus causing the closing of the agreement. Such closing is effective just for the future (so called “efficacia ex nunc”). As a consequence, in the event of an investment master agreement, the purchase orders made before the effective closing of the agreement are null and void; and, in the event of a bank account agreement, the recapitalisation charges, the interests and maximum overdraft fees accrued on the period previous to the filing of the agreement by the bank are, as well, null and void, thus implying the right of the account holder to recover the amount paid.

The contents of such article are merely informative and do not constitute a legal opinion.

For any further information, please contact Gian Carlo Sessa (giancarlo.sessa@nctm.it) e Federico Corti (federico.corti@nctm.it)

 

27/04/2017
Litigation & Arbitration

The issues – briefly addressed here – on which the Supreme Court, with a commendable activity of reorganization and clarification, ruled (i.e., whether an award should be classified as a partial or an non-definitive one, and whether the issue of the validity of an arbitration clause is a substantial or procedural issue) may at a first sight seem inherently (and merely) technical. However, the practical implications of such issues, coupled with the risk that an inattentive defence, underestimating their relevance, may adversely affect the assisted person’s rights, make the decision under examination particularly worthy of attention.

The Joint Divisions of the Supreme Court ruled on the challenging of non-definitive and partial awards and, by judgment No. 23463, filed on November 18, 2016, they stipulated the following principle of law:

“A partial award on the merits of a dispute, immediately challengeable pursuant to Article 827, paragraph 3, of the Code of Civil Procedure, is both an award of condemnation to undetermined performance [or damages], as per Article 278 of the Code of Civil Procedure, and an award determining one or more of the claims brought without settling the case in full, while awards determining  preliminary issues are not immediately challengeable”.

To fully appreciate the importance and significance of the above decision, it is worth making a brief introductory comment on Article 827, paragraph 3, of the Code of Civil Procedure. From the 1994 reform, such provision regulates two types of award not settling an arbitral dispute, i.e. partial awards (or awards on claims), which are immediately challengeable, and non-definitive awards (or awards on preliminary issues), which can only be challenged with the final award.

In practical terms, arbitrators will render a “partial” award when they only adjudicate on some of the claims raised by the parties, without completely fulfilling their task of settling the dispute. Condemnation to undetermined damages (i.e. a decision determining the existence of a right to damages and not the quantum) is an example of partial award.

An award determining a preliminary issue without settling the dispute can instead be classified as an “non-definitive” award. An example of it is the award dismissing an objection of expiry of limitation period while reserving the decision on the existence of a credit to a later date. Should the objection be upheld, the arbitrator would de facto render a final award.

The distinction between the above two types of award has an impact on the possibility of immediately challenging the award or not (respectively, in case of a partial or of an non-definitive award). A partial award has indeed an impact on the parties’ substantial legal sphere, in that it adjudicates on a right and results in an immediate and actual unfavourable verdict. By contrast, a non-definitive award has the only effect of exhausting the arbitrators’ authority to rule on a certain issue, preventing them from modifying their decision. In this way, a non-definitive award leads to a purely hypothetically unfavourable outcome, which may only be taken into account and assessed together with the effects of the final award.

The possibility of issuing awards not settling the arbitral dispute was introduced in 1994. Before such statutory change was implemented, case law had already allowed the issuance of partial awards (inter alia, Supreme Civil Court, judgment No. 6021, November 9, 1988), despite firmly excluding the right to immediately challenge them (Supreme Civil Court, judgment No. 3835, June 9, 1986). This was based on the principle of indivisibility of awards, which involves any invalid provision of an award affecting the validity of the remaining relevant provisions (Supreme Civil Court, judgment No. 12731, November 28, 1992). Said principle of law was overruled by Italian lawmakers in order to bring Italian law in line with the New York Convention, the Geneva Convention and other international laws.

Getting back to the case at hand, the Joint Divisions ruled on a judgment whereby the Court of Appeal of Naples declared the invalidity of two arbitral awards, finding that the award made earlier was not immediately challengeable for having only determined the issue of the arbitral panel’s jurisdiction. The claimant challenged the Court of Appeal’s decision on the ground of the Court having erroneously classified the substantial issues adjudicated in the award – on (i) standing to sue and (ii) the validity of an arbitration clause – as preliminary issues. In the claimant’s view, such issues should have been deemed related to the merits of the case and the award, as a partial decision on the merits, should have thus been immediately challenged under Article 827 of the Code of Civil Procedure. The Joint Divisions inquired into the (partial or non-definitive) nature of the award, answering two distinct questions on

  1. whether the award be immediately challengeable (and, therefore, classifiable as a “partial” award) also when it determines preliminary issues, or only when it determines the merits of a claim; and
  2. whether the issue of the validity of an arbitration clause be one of merits or procedure.

With regard to the issue under a), the Supreme Court put an end to a case-law conflict on the point. Indeed, according to certain precedents, an award determining the “jurisdiction” of arbitrators –recognising the validity of an arbitration clause agreed upon by the parties or, vice versa, excluding their power to adjudicate –  should be classified as a partial award and, as such, should be immediately challengeable for being related to a preliminary issue of merits (Supreme Civil Court, judgments No. 5634, April 6, 2012 and No. 3678, February 17, 2014). According to another line of precedents, an award determining only the condition for admitting and bringing a case to arbitration should be classified as a “non-definitive” award and, as such, should not be immediately challengeable due to the preliminary nature of the issue brought to arbitration (Supreme Civil Court, judgments Nos. 4790, March 26, 2013 and 16963, July 24, 2014).

Starting from the assumption that the distinction between partial and non-definitive awards only partially overlaps with the distinction between final and non-definitive judgments under Article 279 of the Code of Civil Procedure, the Supreme Court referred to the rules introduced by Legislative Decree No. 40 of February 2, 2006 (Article 360, paragraph 3, and Article 361, paragraph 1, of the Code of Civil Procedure), providing that only condemnation to undetermined performances/damages under Article  278 of the Code of Civil Procedure and judgments determining one or more issues of a case without settling the same in full are challengeable before the Supreme Court. According to a further earlier judgment of the Joint Divisions of the Supreme Court (judgment No. 25774 of December 22, 2014), such rules are in accordance with the 1994 reform, which introduced the third paragraph of Article 827 of the Code of Civil Procedure.

In that perspective, the Supreme Court was led to the conclusion that the statutory criterion for distinguishing judgments under Articles 360, paragraph 3, and 361, paragraph 1, of the Code of Civil Procedure should likewise apply to arbitral awards and, accordingly, awards determining preliminary issues shall not be immediately challengeable.

With regard to the issue under b), the Supreme Court acknowledged the marginal nature of the conflict in case law in light of the unanimous approach of most recent case law. The Supreme Court indeed recognised the judicial nature of arbitration, which replaces the function of court judges, coming to the conclusion that the issue of the jurisdiction of an arbitration tribunal should once and for all be considered as a procedural one (Supreme Court, Joint Divisions, judgment No. 24153, October 25, 2013; Supreme Court, Joint Divisions, judgment No. 1005, January 20, 2014; Supreme Civil Court, judgment No. 22748, November 6, 2015). Accordingly, any inquiry as to the existence or validity of an arbitration clause should be deemed a preliminary procedural issue and can be the subject of a non-definitive award and, as such, shall not be immediately challengeable.

 

This article is for information purposes only and is not intended as a professional opinion. For further information please contact Angelo Anglani (a.anglani@nctm.it).

Italian port law prohibits a terminal operator from managing multiple areas for the performance of the same activities in one single port. We will first analyse how this prohibition could be amended following the recent 2016 reform.

Then we will look at a recent ruling of the Regional Administrative Court of Tuscany which clarified the obligations imposed on the Public Administration in the event of an expropriation of private areas in Italian ports.

The recent extension of the scope of the General Block Exemption Regulation (2014) to the granting of State aid to EU ports and airports reminds us of two recent judgments of the Court of Justice on State aid in the maritime sector and – in particular – the compensation of public service obligations to undertakings entrusted with the operation of services of general economic interest.

Next, we analyse two judgments from the United Kingdom and Spain concerning the application of two major international conventions in the field of international transport, the Hague-Visby Rules and CMR. The English verdict confirms that the failure to issue a bill of lading is not relevant in excluding the applicability of uniform legislation, whereas the Spanish ruling provides us with a definition of “default equivalent to wilful misconduct” for the purpose of excluding the limitation of carrier’s liability.

Moreover, the Italian Court of Cassation has issued two interesting decisions on transport matters. The Italian Supreme Court denied the holder of the bill of lading the right to act against a carrier for damage to the goods due to the lack of endorsement of the bill of lading by the receiver to the order of the holder, and considered an “exchange of containers” as a case of gross negligence of a road carrier.

Finally, let us analyse a decision of the Tax Court of Rome on IRESA, the noise emission tax in Italian airports. This ruling, in view of the fact that the Lazio Region disregarded the principles and aims set out in the national and European regulations concerning the use of the tax revenue, concluded for the disapplication of the IRESA as provided by the current regional legislation.

Alberto Rossi

There’s a fair European wind blowing

Probably the most important outcome of the French election is not so much the actual electoral defeat of the National Front but the decision of that party to remove from its policy programme the idea of withdrawing from the Euro and promoting a referendum on Frexit. In other words, those parties which have based their political offer to the electorate on the negative impact of globalization and the hard impact of immigration, no longer see the solution as the break-up of the EU.

The same in happening in the Netherlands and even in the UK where the May government is promoting the need to address the negative aspects of globalization and migration in a substantive manner and not long saying that Brexit itself is the answer.

This is a window of opportunity that the EU must embrace. The underlying issues of migration and globalization must be addressed. But if they are addressed in a satisfactory manner the EU itself is not being challenged. There is a recognition in France and in the Netherlands, and even in Germany given the results in the recent Lander elections among the vast majority of the electorate that the EU remains a valid project and that the solutions are best found within its remit.

If Macron and Merkel can get together with the Italy and Spain, much can be done. From an insider’s point of view the only possible hiccup in catching this favourable wind is the capacity of the Commission to recognize it.

 

Alitalia insolvency: second round
By a decree of the Italian Ministry of Economic Development (MISE) on 2 May 2017 the extraordinary administration procedure set forth by legislative decree No. 347/2003 (“Legge Marzano”) was started for Alitalia Società Aerea Italiana S.p.A., which has also been declared insolvent by the Court of Civitavecchia on 11 May 2017.

Can the Court amend the concordato preventivo proposal upon confirmation?
The Court of Cassation with the decision of 3 April 2017, No. 8632 ruled that the confirmation order of the Bankruptcy Court can be appealed, even when there were no oppositions to confirmation, if the Court unilaterally amended the proposal approved by the creditors.

Is the bank liable for damages suffered by the insolvent company following directors’ reckless resort to credit lines ?
The decision of the Supreme Court of 20 April 2017, No. 9983 confirms that the bank can be held jointly liable with the directors towards the company, on different grounds from those making the bank  accountable to individual creditors.

Grounds for ineligibility or forfeiture of statutory auditors who are members of an association of professionals
Pursuant to Article 2399, letter c), of the Italian Civil Code, statutory auditors whose patrimonial relationships with the company or its subsidiaries may affect their independence cannot be appointed and, if appointed, cease from their office. It has been questioned whether the case whereby a statutory auditor is a member of an association of professionals providing consultancy services to the same company reflects the case provided for by the law. Although the answer to the question was generally affirmative, doubts still remain as to the criteria adopted by the Supreme Court in order to determine the cases in which the independence of a statutory auditor can be actually considered as compromised.

The scope of the delegation of management in limited liability companies (s.r.l.): content and limits
By decision no. 25085 of 7 December 2016, the Supreme Court established the legitimacy of a general delegation of management, by the board of directors to individual managing directors with the power to act separately, to the extent that it is not aimed at excluding the exercise of a concurrent managing power by the managing body.

Data processing for marketing purposes: the protection of legal entities
By order No. 4 of 12 January 2017, the Italian Data Protection Authority set out the discipline on personal data processing for marketing purposes, finding the unlawfulness of both the processing of data collected through forms available on websites and the processing of data (namely, telephone numbers) autonomously collected on the Web.

Administrative liability of entities under Legislative Decree No. 231/2001 within groups of companies
Liability can be found, under Legislative Decree No. 31 of 2001, on the part of a holding company for offences committed in connection with the activities of its subsidiaries, provided that a) the person acting on behalf of the holding company acts in concert with the person committing the offence on behalf of the controlled entity; and b) the holding company appears to have obtained a concrete advantage from, or pursued an actual interest by way of, the offence committed in the context of the subsidiary’s activity.

The liability of non-executive directors and the duty to act in an informed way
According to decision no. 17441, of 31 August 2016, of the First Division of the Supreme Civil Court, the liability of directors without management power cannot originate from a general failure to supervise – that would be identified in the facts as a strict liability – but must be attributed to the breach of the duty to act in an informed way, on the basis of both information to be released by executive directors and information that non-executive directors can gather on their own initiative. Therefore, the determination of the prerequisites for the liability of delegating directors fits in a context accentuating the distinction between the duties imposed on managing directors and those typical of non-executive directors.

Considerations regarding the possibility to waive the termination effect of a notice to perform
Judgment No. 4205 of 3 March 2016 of the Supreme Court, Second Division, gives us the opportunity to provide a brief overview of the different opinions expressed by courts and legal commentators regarding the possibility to waive the termination effect of a notice to perform.

Validity of the shareolders’ agreements which provide a preventive waiver of the liability action against the directors when taken at the conclusion of the mandate
With the decision of 28th September 2015, No. 19193, the Court of Rome stated the validity of the shareholders’ agreement clauses which provide that the “incoming” shareholders undertake not to bring the liability action against the “outgoing” directors or not to vote for it in the general meeting.

The Supreme Court’s overruling: the banking and finance agreement signed exclusively by the client is null and void
The Supreme Court decides again the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.

Purchase of shares of a general partnership: can the mistake on the value of the share be legitimately qualified as an essential mistake?
The Tribunal of Milan has stated that, as a rule – also with reference to the purchase of shares of a general partnership – the contract can be avoided, upon application of a party, for an essential mistake, only if the contract contains an explicit guarantee on the value of the assets and on the quality of the goods of the company (a guarantee that, according to the Tribunal, the contract at hand lacked).

The new rules regarding the proceedings before the Supreme Court (Decree Law n. 168/2016, converted into Law n. 197/2016)
With another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).

The joined chambers of the court of cassation on the qualification and challenge of the non-final award and of the partial award
“An award that partially decides on the merits of a dispute, immediately challengeable pursuant to art. 827, paragraph 3 of the code of civil procedure, is both that of a generic condemnation pursuant to art. 278 of the code of civil procedure, and the award that decides one or some of the questions of the case, without defining the entire proceedings; instead, the awards that decide preliminary issues are not immediately challengeable.”

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