Lawyer Monthly Magazine -December 2019 Edition

Expert Insight By Avv. Daniele Ferretti, Esq., Ferretti Firm Occasionally, recourse to mediation may also be requested by a judge in the course of the proceedings, whenever he or she deems it appropriate. Further, parties may voluntarily decide to start mediation proceedings in non-mandatory civil and commercial matters, provided that inalienable and indefeasible rights are not affected therefor. Conciliation and arbitration are both also in place. While conciliation is largely used for preventing disputes concerning employment law, recourse to arbitration is a path commonly taken in complex commercial agreements and corporate law matters. ADR services are quite accessible, as the local bar associations have recently established chambers of arbitration and mediation bodies. How expensive can court proceedings be for businesses? How is this often funded? As the Italian legal system is not adversarial in nature, the costs of court proceedings are nearly aligned with those of other European civil law countries and are generally lower than the average of common law countries. Lawyers are required to provide a fee estimate of their legal fees before being retained by the client; the agreement cannot include the assignment of any asset being affected by the dispute. If the lawyer fails to do so, he or she may be sanctioned according to the rules of professional responsibility. In judicial proceedings, the judge determines the legal fees having reference to the criteria set forth by Ministerial Decree no. 55/2014 and subsequent amendments, which set forth certain value brackets and amounts due for each stage of the proceedings. The Italian Code of Civil Procedure adopts the “loser pays” rule. The prevailing party of a dispute, therefore, is in principle entitled to obtain a refund of the costs and fees incurred during litigation, including those of the experts. However, judges are free to set off or differently allocate such expenses in the event that both parties lose, or when other circumstances justify an exception to the general rule. The judge is also entitled to award certain damages against the party responsible for vexatious litigation (e.g. frivolous, repetitive or burdensome lawsuits). Litigation funding agreements are rather unusual. Insurance agreements are relatively common and often provide full coverage of legal costs. LM About Daniele Ferretti Daniele Ferretti is the Founder and Managing Attorney of Ferretti Firm, a boutique law firm specialised in dealing with complex cases, providing high-end services across differ- ent areas of law. His business litigation experience includes contract and corporate disputes in a wide array of fields (in- cluding oil and gas, construction, foreign investment, inter- national distribution and joint ventures), officer and director liabilities, breach of fiduciary duties, business torts, product liability and other general litigation matters. In addition to representation of clients before state courts, he has acted as counsel and co-counsel in several national and international arbitrations, including ICC and ICSID proceedings. Mr Ferretti was admitted as attorney-at-law in Italy in 2005 and was called to the bar in New York in 2009. In 2012, he was appointed as officer of the Product Law and Advertising Committee of the International Bar Association (IBA), where he currently serves as Vice Chair. Mr Ferretti currently leads a team of professionals made up of five attorneys. In recognition for his brilliant legal career, he is frequently en- gaged in speeches at seminars, conferences and workshops promoted by the main associations of Italian entrepreneurs, consulates and consulting companies. Mr Ferretti is also an accomplished writer on dispute resolution topics, including on comparative approaches to arbitration law and interna- tional debt collection. Along with other relevant professional achievements, Mr Fer- retti has received an award by Louis F. Del Duca, professor emeritus of law and internationally recognised as a leading scholar in the fields of commercial and comparative law. For any clarification or further information, please contact: Via B. Cairoli, 46 51016 Montecatini Terme (PT) Tel: +39 0572 092613 Fax: +39 0572 092612 Email: dferretti@ferrettifirm.com 68 WWW.LAWYER-MONTHLY.COM | DEC 2019