The true ‘power’ of the decision of Italy’s financial disputes arbitrator
Pavia e Ansaldo Studio Legale, Milan
Pavia e Ansaldo Studio Legale, Milan
This article follows judgment No 3654, issued by the Court of Rome on 8 March 2022. The article focuses on the uncertain and still controversial legal nature of the decisions issued by the Arbitro delle Controversie Finanziarie (ADR), an alternative dispute resolution instrument that is specific and peculiar to Italian law.
The Arbitro per le Controversie Finanziarie (Arbitrator for Financial Disputes, or ACF) constitutes an alternative dispute resolution instrument that resolves financial disputes between investors and financial intermediaries, which concern breaches of duties. When providing investment services, intermediaries must comply with obligations of transparency, ethical behaviour and ensure the disclosure of complete and accurate information to the investing public.
The ACF was established by means of Resolution No 19602 of 4 May 2016, issued by the Commissione Nazionale per le Società e la Borsa ('CONSOB'), which is the public authority responsible for regulating and supervising the Italian financial products markets as well as protecting the investing public.
The ACF has exclusive jurisdiction to hear disputes raised by investors concerning claims for compensation of up to a maximum of €500,000.00. Once an appeal is submitted to the ACF, the intermediary is obliged to participate in the proceedings.
The procedure does not entail costs (other than the payment of a €20.00 revenue stamp) and does not require legal assistance. In addition, the arbitrators who decide on the dispute are qualified as experts in banking and finance. The ACF is thus a cheaper and faster alternative to national court proceedings, and ensures an impartial and independent judgment.
The ACF’s decision concerning any non-compliance by an intermediary is published: (1) on the arbitrator's website for a five-year period; (2) on the homepage of the intermediary's website for a six-month period; and (3) in two national newspapers, one of which must be a business newspaper. However, should the plaintiff investor be dissatisfied with the arbitration decision, he/she is able to bring an action in court.
The uncertain legal nature of the ACF
The legal nature of the ACF has always been the subject of lively debate in both doctrine and jurisprudence. Over the years, there have been several attempts to achieve clarity on the nature of the ACF and the legal scope of its decisions. In particular:
- According to certain legal theory, the ACF should be considered as a form of mediation. The procedure before the ACF, in fact, ends with a final decision, adopted according to law and capable of settling the entire dispute as a settlement agreement. Conversely, there are those who believe that the ACF is not similar to mediation because the procedure is neither aimed at reaching an amicable settlement of the dispute, nor does it involve a third party in the role of mediator; and
- According to another interpretation, the ACF should have the same legal nature as arbitration. In fact, as in arbitration, the ACF complies with procedural rules in order to decide the dispute and renders decisions in accordance with the rule of law. There are, on the contrary, those who observe that, within pending proceedings before the ACF, the rules are laid down by a third-party (ie, CONSOB) and, therefore, a comparison with arbitration would appear to be inappropriate.
As illustrated above, the uncertain and much debated nature of the ACF has led to different interpretations regarding the legal scope of its decisions. This was the case until the recent ruling rendered by the Court of Rome.
Judgment No 3654, 8 March 2022, issued by the Court of Rome
Through judgment No 3654 of 8 March 2022, the Court of Rome ruled on the issue regarding the legal nature of the ACF.
In the case brought before the Court, the matter concerned an opposition to a payment injunction obtained by an investor based on a decision rendered by the ACF. In fact, the ACF ordered the intermediary to pay compensation to the plaintiff of €15,264.13, but the convicted intermediary did not wilfully comply with the final decision.
Before the Court, the investor supported the thesis based on which the ACF is similar to arbitration. Thus, the decision rendered by the ACF should be considered as a ‘contract under Article 1372 of the Civil Code having the force of law between the parties’. Accordingly, the investor believed that the amount of €15,264.13 was certain, fixed and due and that he was therefore entitled to obtain an injunction. On the other hand, the intermediary raised a preliminary objection concerning the lack of territorial jurisdiction of the Court of Rome and, from a substantial point of view, argued that the decision issued by the ACF was not binding on the bank because it was not susceptible to enforcement.
The Court of Rome, following an examination of the various orientations developed over the years (supra § II), ruled in favour of the opponent. According to the Tribunal, neither of the orientations were suitable, as the ACF is not comparable to either mediation or arbitration (although it acknowledged that the ACF’s nomen juris was misleading). In fact, the ACF has features that make it 'unique' and different from traditional ADR systems, such as arbitration and mediation. The Court reasoned that:
- only investors/savers can bring an action before the ACF and the final decision is ‘not an agreement between the parties’;
- only the intermediary can be condemned and the ACF’s decisions ‘are not binding nor do they acquire the status of res judicata or constitute an enforceable title’; and that
- compliance by intermediaries is ensured only by means of the so-called ‘reputational sanction’ (ie, publication of the intermediary’s failings on different public websites; supra section I).
In conclusion, this judgment ruled out the possibility that ACF decisions are binding on the parties, as they can neither acquire the authority of a final decision (like a civil judgment) nor constitute an enforceable title on which to base a credit recovery executory action. However, noting its lack of territorial jurisdiction, the Court decided to revoke the payment injunction.
The decision of the Court of Rome is therefore of undisputed importance: it is now clear that investors are not permitted to use the ACF to obtain an injunction.