Regulation implementing Italian Legislative Decree no. 179 of 8 October 2007, regarding the Conciliation and Arbitration Chamber established by Consob and the relative procedures (adopted by Consob with Resolution no. 16763 of 29 December 2008)1
CONTENTS:
TITLE 1
DEFINITIONS
Art. 1
(Definitions)
1. In this Regulation:
a) "Chamber" shall mean the Conciliation and Arbitration Chamber established pursuant to article 2 of Italian Legislative Decree no. 179 of 8 October 2007;
b) "investors" shall mean investors other than the counterparties defined under article 6, par. 2-quater d) and the professional clients under paragraphs 2-quinquies and 2-sexies of Italian Legislative Decree no. 58 of 24 February 1998 as amended;
c) "intermediaries" shall mean the persons entitled pursuant to art. 1, par. 1 r) of Italian Legislative Decree no. 58 of 24 February 1998 as amended and the company Poste Italiane - Divisione Servizi di Banco Posta – authorized pursuant to art. 2 of Italian Presidential Decree no. 144 of 14 March 2001;
d) "Legislative Decree" shall mean the Italian Legislative Decree no. 179 of 8 October 2007;
e) "lists" shall mean the list of conciliators and the list of arbitrators held by the Chamber pursuant to articles 5 and 6 below.
TITLE II
THE CONCILIATION AND ARBITRATION CHAMBER
Art. 2
(Composition of the Chamber)
1. The Chamber is composed of a president and four members, selected from among persons with specific, proven experience and competence and who are known to be independent and appointed by Consob. They shall remain in office for seven years, without the possibility of receiving tenure, and are not allowed to hold offices in other conciliation and arbitration organisations, set up by public
or private entities in any sector, nor may they exercise the conciliation or arbitration activity or any other activity that could compromise the independence and autonomy of their judgment.
2. Two members of the Chamber will be appointed by the National Council of Consumers and Users respectively and, concurrently, by the associations of intermediaries that are most representative. The appointment will be communicated within sixty days from receipt of an invitation by Consob. Should no appointment be forthcoming within the indicated time period, Consob will appoint the two
members directly.
3. The members of the Chamber will be individuals originating from the following professions:
a) attorneys registered with the ordinary and special bars that are authorized to represent clients before higher courts; chartered accountants registered under Section A) of the register of chartered accountants and accounting experts with at least twelve years of experience;
b) notaries with at least six years of seniority; ordinary judges that have served for at least twelve years or who are retired; administrative and accounting judges with at least six years of seniority or who are retired;
c) university professors who teach economics and law, acting or retired; independent officials of the government or of independent authorities with at least twenty years of service who hold degrees in law or economics, acting or retired.
4. The three members appointed by Consob, including the president, are usually selected from each of the groups of categories set forth under 3 above.
5. The members of the Chamber can be removed only for just cause by a provision issued by Consob.
6. Inexistence of the requirements set forth under paragraphs 1 and 3 above from the onset or their loss thereafter and the serious non-fulfilment of the obligations of the members of the Chamber will result in their removal from office. The removal from office will be announced by the Chamber within thirty days of the appointment or the day that the loss of the requirements or the facts
indicating serious non-fulfilment of the obligations became known. In the case of lack of action by the latter, the removal from office is pronounced by Consob directly.
7. The remuneration of the president and the members is determined by a resolution issued by Consob.
Art. 3
(Operation of the Chamber)
1. The resolutions of the Chamber are made collectively with the presence of at least three members. Unless a different majority is provided, the resolutions of the Chamber are adopted by a majority of votes and in any case, with no fewer than two votes in favour. In the case of a deadlock, the president shall have the casting vote.
2. The Chamber will issue its own by laws containing the organisational and operating regulations.
3. The resolutions under paragraph 2 which must be approved by a majority of at least four members will be communicated to Consob, which is entitled to request clarifications and modifications within thirty days of their receipt. Once thirty days have passed from receipt of the resolutions or clarifications and the modifications requested, they will be considered approved.
4. The Chamber's headquarters will be located within the Consob offices and it will carry out its activity using the structures and resources indicated and provided by Consob.
5. Within the month of February, the Chamber will present to Consob a report on its activities of the previous year.
6. Consob may request the Chamber for information on its activities and the institutional duties carried out while it may impart directions relating to the controls on the requirements for the compilation of the lists.
7. Consob will cover the administrative expenses of the conciliation and arbitration proceedings with the contributions paid by the intermediaries pursuant to article 40, par. 3 of Italian Law 724 of 23 December 1994 as amended, as well as with the amounts charged to the users of the procedures.
Art. 4
(Functions of the Chamber)
1. The Chamber administrates the conciliation and arbitration proceedings undertaken for the resolution of disputes that arise between the investors and intermediaries for violation by the latter of information, correctness and transparency requirements set forth as part of the contractual relations with investors. It shall in now way intervene as to the merit of the disputes during the
conciliation procedure and the arbitration award. In particular, the Chamber will:
a) ensure the upkeep of the list of conciliators and arbitrators, which it will update every six months;
b) establish and update the ethics code of the conciliators and arbitrators, which it will submit to Consob for its approval pursuant to article 3, par. 3;
c) organise the arbitration and conciliation services with account taken of the non litigious composition phase of the dispute pursuant to article 140-bis, par. 6, of Italian Legislative Decree no. 206, 6 September 2005;
d) promote the arbitration and conciliation services and disseminate knowledge thereof through activities involving documentation, data elaboration and research and including the setting up of joint efforts with other institutions, economic associations and other public or private organisations in the financial services and conciliation and arbitration proceedings sectors;
e) organise training and information courses for conciliators and arbitrators;
f) carry out all other functions attributed to it by this regulation.
2. For the purpose of resolving issues relating to reciprocal competences, the Chamber will conclude a protocol of intent with the extra-judicial system for the resolution of disputes pursuant to article 128-bis of Italian Legislative Decree no. 385, 1 September 1993.
Art. 5
(List of conciliators)
1. Individuals holding the requirements relating to profession and honour indicated under article 4, par. 4, a) and b) of Italian Ministerial Decree no. 222, 23 July 2004 may request to be included in the list of conciliators.
2. Upon receipt of the request for inclusion on the list, the Chamber will confirm the accuracy of the documents attached to the request confirming possession of the requirements and deliberate to this effect.
3. Every six months, the Chamber will update the list, proceed to new additions and cancel the names of those who have lost the requirements set forth under par. 1 or whose situations have become incompatible pursuant to par. 4, or who have requested to be removed from the list. Cancellation may also be ordered due to severe failure to carry out the obligations set forth in the ethics code
or which are connected to the office held. If cancellation is not due to the request of the conciliator, it will be pronounced by the Chamber once the interested party is heard.
4. Conciliators may not carry out conciliation activities for more than two conciliation organisations and will communicate without delay to the Chamber the loss of the requirements for inclusion on the list.
Art. 6
(List of arbitrators)
1. Individuals who belong to the categories set forth under article 2, par. 3 can request to be added to the list of arbitrators, provided:
a) there are no final judgements against them for non criminal offences or which involve imprisonment, including for violations;
b) they no judgments have been pronunced against them involving imprisonment, and applied by request of the parties of six months or more;
c) they did not incur a temporary or permanent interdiction of holding public office;
d) they were not subjected to preventive or security measures;
e) there were no disciplinary sanctions against them other than a warning.
2. Upon receipt of the request for inclusion on the list, the Chamber will confirm the accuracy of the documents confirming possession of the requirements and deliberate on the inclusion.
3. Every six months, the Chamber will update the list, proceed to new additions and cancel the names of those who have lost the requirements set forth under par. 1 or who have requested to be removed from the list. Cancellation may also be ordered due to severe failure to carry out the obligations set forth in the ethics code or in connection to the office held. If cancellation is not due
to the request of the arbitrator, it will be pronounced by the Chamber once the interested party is heard.
4. Arbitrators shall immediately inform the Chamber of the loss of requirements set for inclusion in the list.
TITLE III
OUT-OF-COURT SETTLEMENT
Art. 7
(Conditions for eligibility)
1. A petition to initiate the conciliation procedure may be presented exclusively by the investor when, in relation to the dispute:
a) no other conciliation procedures have been initiated, including by the initiative of the intermediary the investor used;
b) a complaint has been presented to the intermediary to which a specific response was provided, a period of ninety days or any shorter period set by the intermediary for handling of the complaint has elapsed without the investor having received a response.
Art. 8
(Commencement of the proceeding)
1. The petition which must be signed by the investor and accompanied by the documentation proving eligibility as set forth under article 7 with the proceeding commencement expenses paid, can be set forth in the appropriate form provided by the Chamber and must necessarily contain:
a) the surname, last name and address of the physical person submitting the petition or, for legal persons, the company name and the name of its legal representative; the postal and electronic addresses, telephone and fax numbers to use during the proceedings and appointment of any proxies;
b) a description of the dispute and demands, with an indication of the relative values;
c) a commitment to observe the confidentiality requirements and other rules inherent in this regulation.
2. The intermediary must be given notice of the petition using an appropriate medium, with proof of receipt and the petition must be submitted to the Chamber within the following 30 days.
3. The Chamber will assess the eligibility of the petition within five days of its submission and will request the petitioner to make any additions or corrections within an appropriate time period. Should the time period set elapse without action being taken, the Chamber will declare the petition inadmissible while it will inform the investor and the intermediary accordingly.
4. Once it has declared a petition admissible, within five days of its submission or the submission of the additions and corrections requested, the Chamber will invite the intermediary to accept the conciliation attempt, while providing any additions and corrections.
5. Using an adequate medium for which proof of receipt can be provided and within the five days following the invitation of the Chamber, the intermediary will inform the Chamber and the investor of his acceptance of the conciliation attempt using a document which will contain his commitment to observe the confidentiality obligations and other rules set forth in this regulation, which will
be accompanied by:
a) the documents proving that the procedure commencement expenses have been paid;
b) the documentation that applies to the contractual relation under dispute, including the complaint set forth by the investors and any decisions made in its regard.
6. Should the deadline set forth above elapse, the Chamber will announce the intermediary’s failure to respond to the conciliation attempt in a timely manner.
Art. 9
(Appointment of the conciliator)
1. Once the petition has been submitted, the Chamber will appoint without delay a conciliator from among those listed, with account taken of the following criteria:
a) a location close to the investor;
b) number of disputes pending before the conciliator;
c) experience of the conciliator on the specific issues of the dispute in question;
d) fair distribution of duties;
e) an equal balance between men and women.
2. Once the Chamber has received confirmation of the intermediary's participation, it will communicate the appointment to the conciliator and the parties without delay. Once the conciliator has received the appointment and the documentation produced by the parties, he/she will provide a declaration of acceptance within five days. Should acceptance not be forthcoming in a timely manner,
the Chamber will immediately appoint another conciliator.
3. If the appointed conciliator cannot be present for any reason, the Chamber will immediately provide for his/her replacement pursuant to par.1. The new conciliator will proceed pursuant to article 12, par. 2. The procedure will be concluded within 60 days of the date of the replacement.
4. In the event that no conciliator is registered in the province where the investor resides or has registered offices, or if the conciliators that are present are unavailable and it is not possible to guarantee appropriate, speedy handling of the procedure, the Chamber is entitled to appoint the conciliations organisations registered in the register set forth under art. 38, par. 2 of
Italian Legislative Decree 5, 17 January 2003, which have indicated their availability, including through the conclusion of appropriate agreements. The decision to proceed in this manner must be appropriately corroborated by the Chamber. The Chamber will assign the conciliation organisation that it considers most appropriate, taking into account the criteria ser forth under a) and
c) of par.1. The conciliation organisation will apply the rules and fees set forth herein.
Art. 10
(Obligations of the conciliator)
1. When declaring his/her acceptance, the conciliator will confirm that the requirements for his/her registration continue to be fulfilled while there are:
a) no relations with the parties or their representatives such as to affect his/her impartiality and independence;
b) personal interests, whether direct or indirect, relating to the object of the dispute.
2. During the procedure, the conciliator will immediately inform the Chamber and the parties of any circumstances occurring that could affect his/her independence and impartiality.
3. The conciliator observes the rules of the ethics code and fulfils all obligations connect to his/her role.
Art. 11
(General principles applying to the procedure)
1. The conciliation procedure is carried out according to the principles of immediacy, concentration and orality, while all its phases will be confidential.
2. The Chamber will ensure that the documents introduced into the conciliation procedure as well as any other documents submitted by the individuals that participated in the conciliation procedure in any capacity or which were created during the procedure will be adequately maintained and kept confidential.
3. The conciliation procedure is based on the principles of impartiality and cross-examination, notwithstanding the conciliator’s right to hear the parties separately.
Art. 12
(Initial execution and carrying out of the procedure)
1. The conciliation is usually carried out in the location in which the conciliator resides.
2. The conciliator will set the date and the venue for the initial meeting not prior to five but not more than ten days from the acceptance date and will inform the parties and the Chambers in a timely manner.
3. The conciliator:
a) shall conduct the meetings without procedural formalities and without the obligation to take minutes, in the manner in which he/she considers most appropriate given the circumstances of the case, the willingness of the parties and the necessity of reaching a solution to the dispute quickly;
b) may hear the parties separately or conduct a cross-examination in order to better clarify the dispute and identify the points on which there is agreement;
c) may order the intervention of third parties, provided the parties agree to this and to covering the relative expenses.
Art. 13
(Deadline for conclusion of the procedure)
1. The procedure will be concluded within sixty days from the day the petition is submitted or from the subsequent submission of the additions and corrections set forth under article 8, par.3.
2. With the consent of the parties, the conciliator can extend the deadline for the conclusion of the procedure for a period not to exceed sixty days. The Chamber must be informed of this and the following circumstances must exist:
a) there are objective impediments on the part of the conciliator or the parties;
b) it is necessary to acquire information or documents that are necessary to the conciliation attempt;
c) there is a reasonable possibility that the outcome of the procedure will be positive.
3. The course of the sixty days for conclusion of the conciliation procedure is suspended from 1 August to 15 September. The conciliator may deviate from this provision, with the agreement of the parties.
Art. 14
(Conciliation results)
1. If conciliation proves successful, the content of the agreement shall be drafted in the form of a special report signed by the conciliator and the parties involved. Should the parties fail to immediately implement the conciliatory measures, subject to confirmation of its formal consistency, the report shall be approved by decree of the President of the Court with jurisdiction over the
district in which conciliation proceedings were held, and shall constitute a writ of execution for enforced expropriation, enforcement of specific performance and for registration as mortgage by order of the court.
2. Where no agreement is reached and in the event of non-conciliation, at the joint request of all parties the conciliator shall formulate a proposal to which each party shall indicate its final position, i.e. the terms under which the party is willing to conciliate. The conciliator shall note these final positions in a special "conciliation failed" report.
3. Where cases envisaged under subsections 1 and 2 do not apply, the conciliator shall draft a proceedings closure report.
4. On conclusion of proceedings the conciliator shall submit papers to the Chamber, which will arrange the issue of copies to the parties on request, pursuant to confidentiality obligations referred to under article 11.
Art. 15
(Value of the dispute)
1. The value of the dispute shall be determined pursuant to article 10 et seq of the Italian Code of Civil Procedure and for calculation purposes shall indicate charges to be borne by the parties.
Art. 16
(Charges)
1. The charges for use of the conciliation service comprise procedure set-up expenses payable to the Chamber, conciliator fees and conciliator expenses, refundable pursuant to subsection 5.
2. Procedure set-up expenses shall be paid by the parties at the time of filing of the application and response, respectively.
3. Where conciliation is successful, the parties shall be jointly liable for the payment of conciliator fees. In the event of non-conciliation, half the fees shall be paid by the Chamber.
4. The total procedure set-up expenses and conciliator fees shall be determined according to the table indicated in the Annex attached herewith.
5. By a document subject to Consob approval pursuant to article 3, subsection 3, the Chamber shall determine the general expenses necessary to execute the assignment, refundable to the conciliator.
6. On recommendation from the conciliator, the Chamber shall make payment in settlement of the conciliator fees and appropriately documented expenses incurred in execution of the assignment. Said payment shall be binding for all parties.
TITLE IV
ADMINISTERED ARBITRATION
Chapter I
Full arbitration
Art. 17
(Scope of application of arbitration)
1. The Chamber shall administer arbitration proceedings on the basis of an arbitration agreement making express reference to provisions of the Italian Legislative Decree and Consob enactment provisions or in any event requesting referral to arbitration administered by the Chamber, i.e. where the parties submit a joint written application for such arbitration.
2. Where there is no existing arbitration agreement between the parties with referral for settlement under the terms of this regulation, each party may request referral by means of the documentation specified in article 810, subsection 1 of the Italian Code of Civil Procedure. The acceptance of such a request must be received by the Chamber no later than the deadline established in article
20, subsection 2 for filing of the joint nomination of a single or third arbitrator. Where no such acceptance is received, the Chamber shall promptly inform the parties and arbitrators that the arbitration proceedings cannot be administered.
Art. 18
(Applicable provisions for proceedings and the award)
1. Arbitration administered by the Chamber is a form of legal proceedings governed by the provisions of this regulation and by article 806 et seq of the Italian Code of Civil Procedure.
2. In cases envisaged in Book IV, Title VIII, Chapter II of the Italian Code of Civil Procedure, the duties assigned to the president of the court shall be performed by the Chamber.
3. The arbitrators shall award pursuant to legal regulations.
Art. 19
(Seat of arbitration)
1. The seat of arbitration shall be the Chamber, unless otherwise arranged by the parties.
Art. 20
(Number and appointment of arbitrators)
1. Disputes shall be settled by a single arbitrator, unless the parties decide to refer the dispute to a panel of three arbitrators, with proceedings as indicated in article 810, subsection 1 of the Italian Code of Civil Procedure.
2. The arbitrators, selected from among entries on the list held by the Chamber, shall be appointed as follows:
a) in single arbitrator cases, by a joint application by the parties filed with the Chamber within ten days of expiry of the period envisaged in article 810, subsection 1 of the Italian Code of Civil Procedure;
b) in arbitration panel cases, by means of documentation indicated in article 810, subsection 1 of the Italian Code of Civil Procedure. The third arbitrator, called upon to act as chairman of the panel, shall be appointed jointly by the parties or by their appointed arbitrators, with documentation filed with the Chamber by the deadline referred to under paragraph a).
3. Where arrangements for the appointment of one or more arbitrators are not completed in good time, within fifteen days of expiry of the term envisaged in subsection 2 the Chamber shall arrange filing of the document appointing the single or third arbitrator.
4. The Chamber shall appoint arbitrators by taking into account:
a) the number of disputes pending settlement by the arbitrator;
b) experience of the arbitrator on specific questions raised in the dispute;
c) propensity towards equal treatment of men and women;
d) fair distribution of assignments;
e) the distance between the arbitrator’s home address and the seat of arbitration, where the seat of arbitration is not the Chamber.
5. Subsection 4 shall apply also where more than two parties are bound to the same arbitration agreement and arbitrators are not appointed by the deadline established in subsection 2.
6. The chairman of the arbitration panel, with the consent of the parties, may appoint a secretary to provide assistance with the duties of the panel.
Art. 21
(Preliminary formalities)
1. Within ten days of notification, the parties shall file documents with the Chamber as indicated in article 810, subsection 1 of the Italian Code of Civil Procedure and any other documents requested pursuant to article 20, subsection 2, together with the arbitration agreement and proof of payment of the tariff pursuant to article 26.
2. The Chamber shall verify filing of the declaration pursuant to article 22 and the formal regularity of papers and documents referred to in subsection 1, inviting parties where necessary to complete or regularise shortcomings in the documentation within a reasonable time limit, and proceed to appointment of the arbitrators if applicable.
3. Where it is considered that the conditions for arbitration proceedings to be implemented under the terms of this regulation are clearly not met, the Chamber shall refuse the administration of proceedings and duly inform the parties and any appointed arbitrators.
4. During their first meeting, the arbitrators shall assess and decide upon the query raised by the Chamber, also basing their decision on article 817 of the Italian Code of Civil Procedure. The decision of the arbitrators, together with the arbitration agreement as amended by the parties, shall be submitted to the Chamber for assessment as to whether there are grounds to administer the
arbitration proceedings.
5. During their first meeting, the arbitrators shall ask the parties to deposit a sum as payment on account of arbitrator fees and defence costs to be incurred by the parties in order to obtain the award, deciding also the criteria for distribution of costs between the parties. The payment on account shall be determined by the Chamber on recommendation from the arbitrators. Failure to
effect the payment on account by any liable party within fifteen days of the request for payment, or other time limit established by the arbitrators, shall result in the case being barred.
Art. 22
(Arbitrator acceptance, independence and impartiality)
1. Arbitrator acceptance must be confirmed in writing and filed with the Chamber within ten days of the notification of appointment.
2. By means of the acceptance declaration, arbitrators confirm their continued possession of requisites for inclusion in the list and the absence of:
a) relations with the parties or their defence lawyers that could affect their impartiality or independence;
b) any direct or indirect personal interest in the subject of the dispute.
3. During arbitration proceedings the arbitrators shall promptly inform the Chamber and the parties of any circumstance arising which could affect their independence or impartiality.
Art. 23
(Challenge and replacement of arbitrators)
1. Each party may challenge an arbitrator in the presence of the numbered conditions of subsections 1 and 2 of article 815 of the Italian Code of Civil Procedure, submitting justification to the Chamber within ten days of the date on which the party became aware of issue of the impartiality declaration by the arbitrator. The Chamber shall decide upon the claim within fifteen days of its
submission, after consulting the challenged arbitrator and the parties and on obtaining summary data as required.
2. Any clearly inadmissible or groundless nature of the claim shall be assessed by the arbitrators when deciding upon the distribution of costs incurred by the parties to obtain the award, without prejudice to the provisions of article 27, subsection 5.
3. The submission of a challenge claim shall result in suspension of the arbitration proceedings.
4. If for any reason all or any one of the appointed arbitrators should withdraw, arrangements for their replacement shall be made by the methods and terms envisaged in article 20.
Art. 24
(Arbitrator liability)
1. The arbitrators shall be liable for their action pursuant to article 813-ter of the Italian Code of Civil Procedure.
Art. 25
(Award deadline)
1. The arbitrators shall pronounce the award within one hundred and twenty days of acceptance of the appointment.
2. The deadline may be extended prior to its expiry for a period not exceeding one hundred and twenty days:
a) by all parties by means of written declarations submitted to the arbitrators;
b) by the Chamber following justified application from one of the parties or arbitrators, after consulting the other parties involved.
3. The deadline shall be extended by one hundred and twenty days in the following cases, and no more than once in each case:
a) recourse to probative methods;
b) request for an independent expert report;
c) pronouncement of an interim or partial award;
d) modification to the composition of the arbitration panel or replacement of the single arbitrator.
4. In each case, on recommencement of suspended proceedings, the time remaining for pronouncement of the award shall be extended to forty-five days, if less.
Art. 26
(Arbitration service tariff)
1. The service tariff shall be paid by each party to the Chamber, in the sum indicated in the Annex attached herewith, at the time of filing documents pursuant to article 21, subsection 1.
Art. 27
(Arbitrator fees and proceedings expenses)
1. Arbitrators shall have the right to reimbursement of expenses incurred and to payment of the fee for their services unless waived at the time of acceptance or in writing at a later date. The parties shall be jointly liable for such payment, without prejudice to recourse between the parties.
2. The Chamber, on recommendation from the arbitrators, shall arrange payment in settlement of expenses incurred by the arbitrators, according to the table indicated in the Annex attached herewith. Said payment shall be binding for all parties.
3. The arbitrators shall include in their award the settlement of defence costs incurred by parties in order to obtain the decision.
4. The distribution between the parties of arbitrator fees and defence costs incurred shall be determined with regard to the principles of articles 91 and 92 of the Italian Code of Civil Procedure.
5. However, in the event of total or partial loss by the investor not resulting from the temerity of the investor claim in proceedings, arbitrator fees and defence costs shall be borne in equal measure by the parties.
6. For the purpose of this article, the value of the dispute referred to arbitration shall be the sum claimed in the application for arbitration proceedings and that referred to in any counterclaim.
Chapter II
Fast-track arbitration
Art. 28
(Aims and regulation of fast-track arbitration)
1. Fast-track arbitration proceedings aim merely to compensate the equity damages suffered by the investor as a result of intermediary default in terms of disclosure, correctness and transparency obligations envisaged in contractual relations with investors, by calculation of an indemnity pursuant to article 33, subsection 2.
2. The regulations of Chapter I shall apply to fast-track arbitration unless otherwise specified in this chapter.
3. The arbitration award shall be based solely on evidence submitted in advance by the parties with the application for arbitration and response pursuant to article 30.
Art. 29
(Conditions for eligibility)
1. The option of recourse to fast-track arbitration must be expressly indicated in the arbitration agreement.
2. Proceedings may only be brought by the investor.
3. The application cannot be accepted if as part of the same dispute no complaint was issued to the intermediary to which specific response was provided, or if ninety days have lapsed, or shorter term as established by the intermediary for handling of the complaint, in which time the investor has received no response.
Art. 30
(Preliminary formalities)
1. The application for fast-track arbitration, in addition to documents indicated in article 21, shall be accompanied by documentation confirming eligibility pursuant to article 29, subsection 3, and shall contain an indication of available documentary evidence, failing which the option to submit such evidence shall lapse.
2. The response from the intermediary, in addition to documents indicated in article 21, shall be accompanied by all documentation regarding the disputed contractual relations and shall contain an indication of all other documentary evidence, failing which the option to submit such evidence shall lapse.
3. The Chamber shall verify filing of the declaration pursuant to article 22 and the formal regularity of papers and documents referred to in subsections 1 and 2.
Art. 31
(Single arbitrator)
1. Proceedings shall be settled before a single arbitrator appointed by the parties according to methods and terms envisaged in article 20, subsection 2, paragraph a).
2. Failing which, appointment shall be decided by the Chamber within fifteen days of expiry of the term envisaged in subsection 1, taking into account the numbered criteria of article 20, subsection 4.
Art. 32
(Execution of proceedings)
1. Personal appearance of the parties before the arbitrator shall be no later than fifteen days from the date of acceptance pursuant to article 22.
2. During the hearing, the arbitrator shall verify adversarial regularity, freely interrogate the parties and, based on facts submitted, shall ask the parties for clarification as necessary and shall indicate official matters deemed appropriate for negotiation.
3. On conclusion of negotiations, without prejudice to special circumstances calling for a new hearing within the following twenty days, the arbitrator shall invite the parties to specify conclusions.
Art. 33
(Fast-track arbitration award)
1. Within twenty days of the specification of conclusions, the arbitrator shall pronounce award on the basis of documents submitted and taking into account elements emerging during the hearing.
2. The arbitrator shall award in favour of the claim when, given the pleadings formulated by the intermediary and only documents submitted to proceedings, it is considered that the facts of the claim are founded, ordering the intermediary to pay the investor a sum by way of indemnity appropriate to compensate only the equity damages suffered as an immediate and direct consequence of default
by the intermediary, to the limit confirmed by documentary evidence.
3. The arbitrator shall file the award with the Chamber, which shall then submit the award to Consob for formal acknowledgement of regularity pursuant to article 3, subsection 4 of the Italian Legislative Decree.
Art. 34
(Challenge of the fast-track arbitration award)
1. A court of appeal, on allowing a challenge to nullify a fast-track arbitration award, may never pronounce upon the merits of the dispute.
Art. 35
(Final provisions)
1. By special resolutions, Consob shall dictate the provisions of a transitional nature governing the start-up phase of Chamber operations, the format of the register of conciliators and arbitrators, and the launch of conciliation and arbitration proceedings administered by the Chamber.
ANNEX
OUT-OF-COURT CONCILIATION TARIFFS
Administrative expenses for the set-up of proceedings: 30 euro per party.
Conciliator fees
|
Value of the dispute (in euro)
|
Maximum fee payable by each party (in euro)
|
|
|
Up to 1,000
|
40
|
|
1,001
|
5,000
|
100
|
|
5,001
|
10,000
|
200
|
|
10,001
|
25,000
|
300
|
|
25,001
|
50,000
|
500
|
|
50,001
|
250,000
|
1,000
|
|
250,001
|
500,000
|
2,000
|
|
500,001
|
2,500,000
|
4,000
|
|
2,500,001
|
5,000,000
|
6,000
|
|
Over 5,000,000
|
|
10,000
|
The minimum fees shall be those payable as a maximum for the value of a dispute in the range immediately preceding that applying to the dispute concerned. The minimum fee for the initial range in the table shall be freely determined. The maximum fee payable for each dispute value range may be increased by no more than 5% in cases of particular importance, complexity or difficult nature of
the dispute.
***
ARBITRATION TARIFFS
Full arbitration
Arbitration service tariff: 100 euro per party.
Arbitrator fees
|
|
Single arbitrator fees
|
Arbitration panel fees
|
|
Value of the dispute
|
Minimum
|
Maximum
|
Minimum
|
Maximum
|
|
Up to 25,000
|
600
|
1,640
|
1,500
|
4,100
|
|
25,000-50,000
|
1,240
|
2,480
|
3,100
|
6,200
|
|
50,000-100,000
|
2,000
|
3,500
|
5,000
|
8,750
|
|
100,000-250,000
|
4,000
|
8,000
|
10,000
|
20,000
|
|
250,000-500,000
|
7,200
|
14,400
|
18,000
|
36,000
|
|
500,000-2,500,000
|
12,000
|
20,400
|
30,000
|
51,000
|
|
2,500,000-5,000,000
|
18,400
|
30,400
|
46,000
|
76,000
|
|
Over 5,000,000
|
18,400
|
30,400
|
46,000
|
76,000
|
For each value range the minimum and maximum fees must be increased by 0.5% of the difference between the dispute value and the minimum fee for the value range. The maximum fees indicated in the table may be doubled by the Chamber where justified in cases of particular importance, complexity or difficult nature of the dispute.
Fast-track arbitration
Arbitration service tariff: 50 euro per party.
Arbitrator fees
The single arbitrator fees shall correspond to the minimum fee envisaged for the single arbitrator in full arbitration proceedings. The option of the Chamber to double the fee shall remain valid in cases of particular importance, complexity or difficult nature of the dispute.
1. The resolution and annexed regulation were published Gazzetta Ufficiale no. 5 of 8.1.2009 and in CONSOB Bollettino quindicinale no. 12.2, December 2008.
