The Bank and Financial Arbitrator (abbreviation in Italian language: ABF) was created in October 2009. It has been working since January 2010 through its Panels in Milan, Rome and Naples.
This paper arises from the experience of the author as a member of the Panel in Rome. It is aimed at representing some of the major interpretive issues addressed in the execution of the decisional function.
As soon as it began to exercise its functions, the Arbitrator set out some guidelines to define a common strategy to approach particular cases. From this point of view, it must be pointed out howthe concept of "customers" has been extended: according to the "case-law" of the ABF, this notion covers individuals affected by the action of an intermediary even if the parties were not boundby contract. Moreover, the ABF has shown an enlargement of functions which allowed it to deal with pre-contractual obligations. The goal of such extension has been to offer protection to persons claiming that intermediaries violated the obligations of good faith - which bind the parties to adopt a fair behaviour while negotiating.
The ABF often deals with inaccurate and incomplete claims raised by clients or retail investors. From this derives an inescapable effort to "rephrase" the formulations offered by claimants, as far as this is permitted by civil procedure (indeed, the ABF must perform its activity in compliance with the principles of the laws governing civil trials). In this respect, it must be underlined how the ABF sometimes admitted claims for damages raised for the first time in the written pleadings, even if they had not been proposed in the letters of complaint (at an earlier stage of the proceeding), conditional upon the charges having been indicated in such letters. Moreover, in some cases the ABF has been ready to adopt decisions declaring the responsibility of intermediaries despite the claimants failing to produce evidence of the damages: indeed, the Arbitrator found that an action for declaration of responsibility might be entailed in an application for the payment of damages.
A significant part of the issues examined in this paper arose from claims for damages. In this field, several problems concerned the burden of proof, the standards of decision adopted for the assessment of responsibilities, the allocation of risks connected to the use of certain financial instruments. Special attention was cast on the analysis of various types of damages, economic or not: indeed, the ABF has been available to offer protection also to non-pecuniary losses, thus abiding by innovative principles recently acknowledged in case-law, in the footsteps of sensitive doctrines. The limited powers assigned to the ABF as to the acquisition of evidence influenced the reasoning entangled in its decisions. These often evaluate the general clause of good faith and the principle set forth by the Italian code of civil procedure, whereas it provides (sub Article 115) that a party does not need to produce evidence for the facts that have not been specifically questioned by the opposing party.
This paper also deals with issues concerning the institutional framework. The analysis shows the crucial contribution offered by the Bank of Italy for the creation of the ABF and the start-up of its activities. Moreover, the research shows that the choices concerning the organization of the ABF are somehow similar to the ones adopted by other Countries of the European Union and they do not affect the full independence and autonomy of such Authority.
Finally, attention is paid to the recent adoption - through legislative decree (d. lgs.) n. 28 of 2010 - of a body of rules concerning mediation in civil cases aiming at their amicable settlement. The effects of this new regulation on the discipline of the ABF and its functions are investigated.
