More than 146 appeals and more than 83 million euros in compensation paid for theFinancial Banking Arbitrator (ABF), which has passed the ten-year operational milestone; over 7100 appeals and compensations exceeding 84 million euros for the Arbitrator for Financial Disputes (ACF), which has begun its fifth year of activity. These figures testify, beyond any doubt, to the unstoppable trend in Italy of consumers of banking and financial products to move towards dispute resolution tools outside ordinary civil justice. Simplified procedures, resolution times for disputes significantly lower than those of ordinary jurisdiction, a more than satisfactory fulfillment rate on the part of banking and financial intermediaries, despite some apparent cracks in the last period attributable, moreover, to well-limited situations, are the competitive elements with which extrajudicial justice has established itself in our country.
An irrefutable success, therefore, which paved the way for the birth of a third out-of-court arbitrator, linked to the insurance world, to be set up at IVASS, whose birth process is however still relatively far from being concluded (now, at best, its operations could start in the advanced second semester of this year).
A triumphal march, which requires in-depth analyzes and reflections and which certainly leaves critical issues open, above all in terms of the type of intervention carried out by the Arbitrators, the perimeter uncertainties of intervention linked to their competences and the overall efficiency of protection ensured for the recurring consumer .
These and other aspects were extensively discussed in a recent (virtual) meeting promoted by the Faculty of Economics of the Sapienza University of Rome with the collaboration of the National Association for the Study of Credit Problems, in which opinions and experiences of academics, representatives of institutional and non-institutional arbitration bodies and operators of the Italian financial market.
Starting from this quick synthesis of the evaluations expressed by Dominic Siclari, Professor of Economic Law and Financial Markets at the Sapienza University of Rome, his judgment on the experience of ABF and ACF which "by now constitutes living right in the regulation of relations between intermediaries and customers, a virtuous example of de-jurisdictionalization in our legal system. An alternative system which, in any case, will have to continuously adapt to the constant evolution of the market and open up to regulatory and jurisprudential changes, also deriving from supranational jurisdictions, to ensure its permanent effectiveness, to preserve and increase customer confidence in the bodies banking and finance".
For its part, Guido Alpa, Emeritus of Civil Law at the Sapienza University of Rome, underlined the importance of the presence of a lawyer in extrajudicial justice in order to improve the qualitative level of skills used in these procedures, helping to avoid possible disorientations in terms of legal certainty and regulatory protections and to ensure clarity of operational guidelines, with a view to the overall transparency and efficiency of the financial market.
The role of the out-of-court instrument was carefully analyzed by the ACF President, GianPaolo Barbuzzi, noting that "the guidelines defined on the many issues addressed by the Board are not only the tool for settling individual disputes, but also a set of application rules that intermediaries should take into account in order both to minimize the risk of future litigation, and to better pursue the interests of clients, especially when it comes to retail investors".
For its part, Magda White, Head of the Customer Protection and Financial Education Department of the Bank of Italy, if he underlined the importance of the practices of setting up sector-specific out-of-court arbitrators "to avoid, also with a view to international comparison, gaps in protection also through effective coordination between the various systems”, he also reiterated how “it is essential that methodologies be defined to evaluate the degree of effectiveness according to parameters, such as resolution times, decision stability, knowledge and appreciation of customers”. As for the improvement effort that the ABF is carrying out, they were mentioned on the one hand, the experimentation, carried out in agreement with the Presidents of the Colleges, of the monocratic judgment by the President and the attempt at conciliation, on the other the possibility of applying machine learning and artificial intelligence solutions to the ABF world.
Maria Luisa Cavina, Head of the Consumer Protection Service of IVASS, the future Insurance Arbitrator (AAS), established within the Supervisory Body of the sector, "will be an impartial tool available to insurance customers to resolve disputes with companies in an agile and economic way and intermediaries with a view to strengthening consumer protection and trust in the insurance system and deflating legal disputes“. Ultimately, a further tool, in addition to those already put in place by IVASS, available to the public with the aim of "improving both the control over the transparency of products, processes and sales policies, and the management of complaints and the promotion of insurance education”.
But in Italy the arbitration system is not made up only of the arbitrators of the banking-financial sector, as you recalled Rinaldo Sali, Deputy Director General of the Chamber of Arbitration of Milan. In illustrating the activity of this body, both its complementary function have been highlighted, due to the breadth of the scope of intervention not limited only to the banking-financial aspect, but extended to broader issues of corporate matters, tenders and commercial distribution. Both some important differential features: from the criteria for appointing arbitrators, chosen on a case-by-case basis and inspired by independence and impartiality, to the procedural aspects carried out according to a regulation accepted by the parties through an arbitration clause, to the final moment of the arbitration process which culminates in the award , a real sentence that does not pose problems of non-compliance and which can be challenged in the Court of Appeal. Finally, three other points are important: the average time for an arbitration, which is quantified in 14 months, the costs, which are proportional to the value of the dispute and the percentage of arbitrations, half of which ends not with the award but with a new transaction between the parties.
As for market players Dario Focarelli, General Manager of ANIA, noted that there is a tendential reduction in insurance disputes between 2009 and 2019, largely attributable to the Motor TPL sector with more marked consequences on the decrease in cases before the Civil Courts of first instance compared to the proceedings instituted to the justices of the peace. And precisely in the context of the latter there remains "a strong inequality of the dispute between the various provinces, reaching in some of them 60% of the claims in reserve". A system anomaly on which the AAS will hardly be able to influence and which adds to the more general perplexity on the real impact of this body, considering that "its activity should be concentrated on ascertaining the rights and obligations deriving from the contract and on non-compliance with the rules of conduct. And, therefore, it shouldn't extend to ascertaining the facts that caused the insured damages and quantifying the compensations that require preliminary investigations”. In short, if it were not endowed with autonomous investigative power, the AAS could only decide on an equitable basis some disputes of limited value on the basis of information provided by the parties.
For its part, Gianfranco Torriero, Deputy Director General of the ABI, reiterated "the positive opinion on out-of-court dispute resolution systems" and focused on three qualifying points: "the role of the ABI in promoting significant procedural improvements, aimed at ensuring greater homogeneity and in arbitration decisions and, therefore, a degree of greater stability of the system”; the evaluation of the quality of the system also through the rate of fulfillment of decisions, observing that "in the event that this rate tends to decrease, we must ask ourselves about the reasons, in order to find solutions that can strengthen the system in line with the principles general and specifically with the principles of our Constitution"; the need to continuously monitor the aspect of the connection between the activity of the referees and the European regulations.
Also from the world of SIMs, through the words of the General Secretary of Assosim, Gianluigi Gugliotta, words of applause came to the activity of the institutional arbitrators for “the significant contribution made to legal certainty in a sector, in which the constant evolution of the regulatory framework and the fragmentation of the competent institutions generate a legal risk that is difficult to manage. In addition to increasing the level of compliance and limiting the risk of litigation with customers, arbitral rulings enrich investors' awareness of their rights and legal protections”. However, some doubts remain, linked to the issue of the sanction for non-execution of decisions consisting in their publication, which generates reputational damage and often induces intermediaries to "comply, even in cases where they do not agree with the decisions on the merits, in contrary to the precedents or based on probative foreclosure".
In such a confrontation of opinions, the voice of consumers certainly could not be missing, represented by Mario Finzi, Honorary President of Assoutenti, who, examining the prospect of the imminent establishment of AAS, pointed the finger at two crucial aspects: the still unsatisfactory results achieved by the various projects and initiatives on the subject of financial education, an observation which stimulates, also and above all, in the insurance field, the introduction of new and more effective solutions; in the scenario of disruptive technological innovation, the diffusion of technological platforms which, in the light of the modifications and complications induced in the relationship between professional and client, must promote adequate reflections, to be evaluated and investigated also in terms of "opacity in the chain of responsibilities".
Coming to the end of this roundup of opinions, a common thread can be drawn, which, while recognizing the overall goodness of the extrajudicial instrument in Italy, does not hesitate to highlight doubts and perplexities on some specific aspects, arousing reflections for further conceptual systematizations and procedural refinements in the sign of a higher level of legal civilization expressed by the country.
