Today, more and more jurisdictions are either mandating or encouraging parties in dispute to make attempts to resolve their disputes through alternative dispute resolution forums before commencing proceedings in court. The main reason for this is to reduce the workload of the courts. Italy has introduced similar requirements and Mr Paolo Manica, a partner at Studio Legale Mordiglia, Genoa, the Club’s local correspondent, explains the “negoziazione assistita” procedure under Italian Law.
"NEGOZIAZIONE ASSISTITA” UNDER ITALIAN LAW
(Mandatory Assisted Negotiation)
Under Italian law (Art. 1, para 249, of Law no. 190 of 23 December 2014), many types of disputes, including all disputes arising out of a contract of carriage or sub-carriage, are subject to the mandatory “negoziazione assistita” (“assisted negotiation”) as a condition precedent to the pursuit in court. In other words, these disputes cannot be pursued in court if they have not previously gone through “negoziazione assistita”.
“Negoziazione assistita” is an alternative dispute resolution procedure, similar to mediation, aimed at reducing the workload of our courts. It is a procedure where the parties agree to cooperate in good faith and fairness to resolve their dispute amicably, with the assistance of lawyers, within the time limit agreed by the parties, which cannot be less than one month and longer than three, unless extended for thirty days by agreement. The procedure is activated by sending a formal invitation to the other party, by return receipt registered letter or certified email, to enter into a “negoziazione assistita” agreement. The party receiving the invitation has thirty days to accept or decline. If he accepts, the parties, with the help of their respective lawyers, shall prepare the “negoziazione assistita” agreement, which shall include the description of the dispute and the duration of the procedure.
Where the parties, as a result of the “negoziazione assistita”, reach a settlement agreement, the content of the same shall be transposed into a real contract, which shall constitute the enforceable title that the successful party can enforce against the other party’s assets, without a need to go to court for a separate enforceable order. If the settlement agreement is not performed, the forced execution of the debtor's assets can be started immediately by serving a formal demand for payment on the debtor, without the need for a judgment on the breach.
In the event of express or tacit refusal after thirty days to participate in the “negoziazione assistita”, the party who sent the invitation may pursue his claim in court. The refusal has consequences for the party: the judge can in fact consider the refusal in awarding the legal costs and can even order the refusing party to pay damages to the other, if he finds that the refusing party acted in bad faith.
“Negoziazione assistita” is excluded by law in urgent matters such as arrests or injunctions.
As above said, “negoziazione assistita” is a condition precedent to court proceedings. What happens if the parties go directly to the courts and do not start the “negoziazione assistita” procedure first? At the first hearing the judge shall verify that the legal requirement has not been met and shall stay the case, setting a deadline for the parties to start the “negoziazione assistita” procedure and establishing the date of the future hearing for the prosecution of the court proceedings.
In a recent decision in a cargo claim case (GFS International Ltd. v. Ignazio Messina & C Spa and others, Tribunal of Genoa, 04.06.2018), the Tribunal of Genoa held that if the invitation to “negoziazione assistita” is refused or if the procedure failed, court proceedings must be commenced within 30 days, and not within any remaining time of the original time bar. However, this is an unprecedented decision of a lower court, therefore we must wait for this rule to be affirmed by higher courts before considering it as settled case law.