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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27/04/2017

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

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

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

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).

27/04/2017

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 case
The court case concerns a share purchase agreement under which two shareholders of a company ceded their shares to another company, which – paid only one part of the agreed price – undertook to pay the rest as established by the contract.

Because of the non-payment of the amount due by the acquiring company, the shareholders took a legal action in order to obtain an injunction against it.

With its writ of summons in opposition the acquiring company asked the Court to declare the nullity of the contract as “aliud pro alio”, the nullity of the clause which provided not to bring the liability action against the “outgoing” sole director of the company sold, and finally, to confirm and declare the termination of the contract pursuant to Article 1497 of the Italian Civil Code.

The issue
The most important issue addressed by the Court of Rome concerns the classification –  as “shareholders’ agreement” – of the agreement under which the new shareholders undertook not to bring the liability action against the “outgoing” sole director of the company (or not to vote for it in the general meeting), and the validity and effectiveness of this agreement, when taken at the conclusion of the mandate.

The decision of the Court
The Court of Rome, after having rejected the plea of ​​nullity of the contract pursuant to Article 1497 of the Italian Civil Code, addressed the issue of the classification and of the validity of the agreement described.

The Court ruled that these types of agreement are to be considered as “shareholders’ agreements”. To define an agreement as “shareholders’ agreement”, in fact, is not essential that all the participants of the pact are shareholders, if the agreement concerns the exercise of the shareholders’ rights and powers.

The Court – after having confirmed the general validity of the shareholders’ agreements, and after having also said that they can although be considered invalid when they are in conflict with mandatory rules or with general principles – ruled that the shareholders’ agreement shall not be considered unlawful, when it provides a waiver of the liability action against the director who sold his shares and ceased to hold his office and, therefore, it refers to past activities carried out by the “outgoing” director.

In the opinion of the Court, in fact, the shareholders’ agreement under which the shareholders undertook not to bring the liability action against the company’s director can be void only when the agreement concerns a director in office and therefore a preventive waiver of a social right. According to the Court, in this hypothesis the function of prevention of mismanagement (according to Article 2392 and 2393 of the Italian Civil Code) would be nullified. This type of agreement would be as well an agreement which excludes or limits the liability of the debtor in breach of Article 1229 of the Italian Civil Code (and so void pursuant to the same Article).

When, instead, the agreement regards the assumption of a commitment not to vote for the liability action against a director who has ceased to hold the office, and refers to already performed activities, it doesn’t have the same negative value.

The nature of the agreement taken at the conclusion of the mandate excludes the reprehensible nature of the shareholders’ agreement in terms of the violation of Article 2392, 2393 and 1229 of the Italian Civil Code.

Commentary
On the issue addressed by the Court of Rome, even in the recent past, there are many different decisions, which came to different conclusions, in the sense of nullity of the clauses which provided a waiver of the liability action against the “outgoing” director, since these pacts would be aimed at evading mandatory provisions of law (see, eg., Court of Milan, 16th June 2014, No. 7946; Supreme Court of Cassation, 28th April 2010, No. 10215; Supreme Court of Cassation, 27th July 1994, No. 7030)

The decision of the Court of Rome, instead, valued ​​the fact that, if the agreement has been taken at the end of the mandate, the purchasers and incoming shareholders can examine the performances and the results of the company. This situation prevents to consider invalid the agreement, as it is not in breach of the rules governing the liability of directors.

 

For further information please contact: martino.andreoni@nctm.it; francesca.maggioni@nctm.it

 

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.”

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

 

 

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