«They say things are happening at the border, but nobody knows which border» (Mark Strand)
by Vittorio Mirra
ABSTRACT: The Alternative Dispute Resolution (ADR) systems have obtained a huge diffusion in Europe, aiming to the achievement of a high consumer protection. In addition to strengthen the protection of private individuals, ADR mechanisms also ensure significant effects on the public side, in terms of regulatory efficiency and improvement of access to justice. This last requirement is particularly relevant in Italy, in light of the “alarming” data on the (poor) functioning of civil justice. With respect to disputes arising between financial intermediaries and their clients, in Italy, after a failed attempt represented by the Conciliation and Arbitration Chamber at Consob (the Italian Financial Authority), a new Financial Ombusdman (“ACF”, fully active since January 2017) has been set up in order to comply with the ADR Directive. This mechanism is reaching valuable results (in the first year of functioning more than 1800 claims were filed by investors, recognizing compensation due by intermediaries for over 5 million euro) and it is becoming an authoritative response to investor protection needs. The object of the dispute before the ACF must concern the carrying out of investment services (including cross-border transactions) up to a value of dispute of 500,000 euros (much more than similar mechanism in Europe: e.g. the Financial Ombudsman Service in the UK). There are still some improvements that can be adopted to further enhance the ACF functioning (requisites of the Board members, threshold of its competence, barriers for “reckless” disputes), nevertheless this Italian ADR mechanism seems to be able to determine a significant incentive to increase the compliance of intermediaries and a consequent reduction in the litigation (primarily with the effect of a reduction in costs and time to settle a dispute for customers), as well as a more proficient supervisory policies by the competent public Authorities. The “interactions” between the decisions of the ACF and the supervisory interventions of Consob should basically determine further improvement of relations between customers and intermediaries, with positive effects on the collective well-being.
SUMMARY: 1. The Alternative Dispute Resolution as a potential mitigation measure for the inefficiency of justice – 2. A failed attempt in Italy: the Conciliation and Arbitration Chamber at Consob – 3. The new Financial Ombudsman in Italy: basic rules of its functioning – 4. The first results of the ACF and the potential areas of further improvement.
1. From a law and economics perspective, the existence of a relationship between the efficiency of civil justice and the proper functioning of the economic system is widely acknowledged in the scientific literature and demonstrated by the choices of market operators.
The troubles of the justice organization therefore restrain the efficiency of the financial system and the investments, especially those arising from cross-border transactions.
This matter is much more actual with respect to the Italian scenario.
Data on Italian civil justice system are straightforward: the studies by CEPEJ and World Bank highlight the unreasonable duration of civil trials in Italy. Indeed, about 1200 days are needed to reach a ruling on a civil dispute and this implies for the parties an expense of about 20% of the value of the dispute.
To face this long-lasting problem of slowness and inefficiency of the Italian judicial system, several law provisions have tried to introduce some potential solutions to relieve the workload of the Courts and improve the justice system. Among the most significant ones have to be mentioned the Alternative Dispute Resolution systems (ADR), originating in common law systems and which have progressively developed in Europe, becoming increasingly relevant, also in light of the economic and financial crisis of the latest years.
The rationale for the introduction of such ADR systems is mainly due to the deflationary effect of the dispute, as well as to the purpose of promoting the quickest and economic solution of the numerous existing small claims. The foregoing implies an improvement of access to justice with a broad “social” positive reflection; ADRs are also an excellent tool for customers, characterized by the flexibility of use as well as reduced costs and time.
Finally, the establishment of ADR systems can be considered as an integral part of a process aimed at fostering the maintenance of good relations in the financial markets (especially with respect to customers of large companies), as the amicable resolution of disputes does not necessarily imply an interruption of the contractual relationship between the parties.
Over the years the ADR mechanisms with the most effective enforcement instruments (e.g. the Financial Ombudsman Service in the United Kingdom) have contributed to the compliance of the intermediaries’ internal procedures and to a deeper attention to the relationship with customers, triggering a “virtuous circle” that has contributed to a more significant awareness of consumer protection instruments, in order to “lighten” judicial burdens and to create a more “transparent” environment with advantages both for intermediaries and consumers.
2. The Conciliation and Arbitration Chamber at Consob (i.e. the Italian Financial Authority) was established by Legislative Decree No. 8 October 2007, No. 179.
The mentioned Consob Chamber envisaged the applicability of a conciliation and an arbitration, concerning the disputes arising between investors and intermediaries for the violation by the latter of the duties of information, correctness and transparency provided in the contractual relationships with investors.
The characteristics of this out-of-court mechanism (i.e. the lack of binding adhesion by intermediaries, as well as the absence of arbitration clauses in the contracts about investment services) determined a very limited and ineffective effect on markets, despite the attempts to reform it. The data on the activities of the Consob Chamber were, in fact, largely discouraging. In the last year for which full data are available (2016), the Consob Chamber was involved in the “administration” of “only” 80 conciliation proceedings (of which only 71 were eligible and therefore effectively processed).
Therefore, the premature “retirement” of the Consob Chamber and the consequent establishment of a new ADR system for financial disputes, which moreover fully complies with the provisions of Directive 2013/11/EU (ADR Directive), could no longer been postponed.
3. In Italy the ADR Directive has been implemented with the Legislative Decree 6 August 2015, No. 130; the main theme has been represented by the creation of a new ADR mechanism: the Italian Financial Ombudsman (ACF), operative since January 9, 2017.
As a result, the main “weakness” of the old Consob Chamber was fixed, establishing for the new ACF the requirement of mandatory adherence by financial intermediaries, with a specific administrative sanction in case of non-fulfillment of this law provision.
The operational rules of the ACF are compliant with the ADR mechanisms active at European level.
All the main European Countries have several ADR systems active for financial markets issues: France has basically a system based on a private conciliation; even Germany, The Netherlands and Spain have several ADR systems (private and public ones) operating on financial markets. Relations with the parties of the dispute and the activities of the ADR bodies are strictly formalized by procedure: the most advanced scenario is present in the UK, where there is a special Handbook governed by the Financial Conduct Authority.
In general, the ADR bodies have therefore realized a very high degree of effectiveness of their decisions (even in Countries where the latter are not binding) and the intermediaries comply, as a matter of fact, with the ruling of the ADR entities.
Also with regards to the ACF in Italy, the “claimant” can be only a retail investor; counterparts of the relationship are the financial intermediaries; the object of the dispute must concern the carrying out of investment services (including cross-border transactions).
The burden of proof (i.e. the burden of proving that a party has fulfilled its contractual obligations) is up to the intermediary.
The value of the dispute cannot exceed five hundred thousand euros.
The Board of the ACF is composed of five components, which reflect all the interests of the parties operating on the financial markets: three members, including the Chairman, are appointed directly by Consob, while the remaining two members are appointed by the same Authority among persons designated by the national associations of intermediaries and of the National Council of Customers.
Honorability and professional requisites are provided for the ACF Board members, who are also required to observe a deontological code.
The Technical Secretariat is an essential “point of reference” between the ACF Board and the disputed parties.
In fact, through the Technical Secretariat (made up of Consob officers), the appeals are received and “filtered out” for admissibility and acceptability; said Secretariat also receives communications and documents from both parties, carrying out all the preparatory activities for the decision of the Board.
The appeal to the ACF is free for the applicant (who can be only the customer).
The decision-making process has to be fast: the deadline established for the Board decision is ninety days.
The financial intermediaries must comply with the decision of the ACF Board within the term indicated in the decision itself or within thirty days from its issuance.
In the event that an intermediary does not promptly comply with the above mentioned decision, a “reputational” penalty is set forth by the regulation: the defaulting conduct is disclosed by publication, at intermediary’s full expense, on the ACF website, on two domestic newspapers, and on the home page of the intermediary’s website for a period of six months.
4. The establishment of the ACF represents a concrete step forward for the investor protection and for the improvement of intermediaries’ compliance, with positive effects in terms of systemic and collective well-being.
Its institution was finalized in a particularly “complicated” period for the Italian financial system (clearly underlined by the massive filing of the appeals received by the ACF during its first year of functioning). The new ACF in 2017 – also considering the “serial” appeals filed by investors “damaged” by the events involving Veneto banks (Veneto Banca and Banca Popolare di Vicenza) – received 1839 appeals, taking 779 decisions (61% favorable to the applicant), recognizing compensation due by intermediaries for over 5 million euro. Among the 1469 appeals considered as admissible, the minimum amount requested was 41 euros, the maximum amount was 500,000 euros (corresponding to the limit within which the ACF is competent). The total value of the requests made by the claimants is over 80 million euros (81.1 million euros); the average amount requested is 55,244 euros.
The above mentioned significant data are probably going to grow further with the continuation of the ACF activities.
This new ADR mechanism has unquestionably the merit of having rationalized the tools available to investors, “absorbing” the expertise of the Ombudsman-Giurì Bancario in the same area. Another big step forward has been the immediate adherence to the FIN-NET network (inexplicably never carried out by the “old” Consob Chamber), which put the ACF into a transnational context, which allows investors to get in touch and easily obtain information about the relevant ADR scheme for the protection of their rights in case of cross-border transactions.
There are, however, some regulatory choices that may cause some bafflements and which are susceptible to improvements, also in light of to the outcome of the first operational experiences of the ACF functioning.
First of all, the decision to allow Consob employees to be part of the ACF Board (although within the limits set by the ACF Regulation) could raise some concerns. The basic opportunity of such a choice is debatable, both for the role assumed by these subjects (ACF members, but still future Consob employees at the end of their assignment) and for the close relations with the Technical Secretariat, also composed by Consob employees.
The impartiality of the public official outlined in art. 6, paragraph 2, of the ACF Regulation (“where an employee of Consob is appointed, the latter will carry out his/her duties with full functional autonomy”) does not seem to be wholly determined. The presence of a Consob employee in the ACF Board could appear inappropriate, since, despite the above stated statement, the employee could be “influenced” – even indirectly – by the supervisory approaches kept by Consob, and mainly because he/she has been and will be an integral part of the mentioned Institution at the end of his/her mandate as ACF member. Furthermore, it should also be avoided that doubts arise concerning the actual independence of the ACF members and on the “relationships” (direct or indirect) with the Supervisory Authority, which must be “involved” only with regard to organizational profiles (as the role set out for the Technical Secretariat).
The growing number of appeals will probably require, moreover, to revise the decision not to arrange the ACF Board in different locations. In Italy, the example of the ABF for the banking sector (recently “enlarged” with the addition of a further four Boards, for a total of seven) probably will have to be replicated also in the financial area, always for the purposes of strengthening the investor protection.
Some doubts remain about the duration of the mandate for the ACF members. The choice made (five-year term for the Chairman and three years for the other Board members, with the chance of being confirmed only once) appears not faultlessly able to guarantee the independence and the neutrality of judgment. A more effective guarantee (at least from a formal point of view) could be granted by a long term mandate without the possibility of renewal (as like the mandate of the members of the Supervisory Authority: e.g. Consob).
Moreover, turning to the operating issues, the topic of futility and recklessness of the appeals seems to have been underestimated.
The free access to the ACF could cause the “slowing up” of its decision-making response, by virtue of the number of appeals filed, some of which could be “reckless” or otherwise purely instrumental (though not formally unacceptable), being no “barrier” when the appeal is filed. In fact, no elements seem to be formalized to classify the appeals presented as “pointless” (also to be able to correctly monitor them). As a matter of fact, in the ACF Regulation there is no provision similar to art. 96 of the Italian Code of Civil Procedure and therefore there are no specific powers of the ACF Board to establish a liability for “reckless litigation”.
This risk could be minimized with the introduction of an entry “chip” for any appeal filed (obviously economically not significant, as required by the ADR Directive: “minimum costs for consumers”), possibly repayable at the end of the procedure in case of a favourable decision for the investor (as like the ABF for banking disputes in Italy).
It is worth noting that the limit of competence amounting to 500,000 euros (much higher than the 100,000 euros provided by the ABF at domestic level, as well as the 150,000 pounds set by the Financial Ombudsman Service in the United Kingdom) may appear to be disproportionate and nearly in contrast with the inspiring rationale of ADRs, created to quickly address requests for “small claims” from retail customers.
By virtue of the ACF’s declared inspiration to the expertise gained by ABF in the banking sector, the choice to quintuple the limit for its competence does not seem to take into account the significant amount of appeals that have been filed and which will reach this ADR mechanism in the next months/years (and that could undermine the timeliness of its decisions and its trustworthiness). Consob shows that it is not fully convinced of the choice (a rash decision?), establishing that the suitability of this limit can be further assessed, taking into account the disputes submitted to the ACF and their proximity to the threshold introduced.
The ex-post analysis on the first operating results of the ACF functioning should help to “calibrate” the ADR mechanism in Italy. Consob must take into consideration the decision-making trends of the ACF to “shape” its supervisory actions towards the most frequent problems involving the relationship between intermediaries and customers, also facilitated by the “proximity” of the Technical Secretariat.
One of the main goals of the ACF must therefore be to determine a significant incentive for increasing the compliance of intermediaries and a consequent reduction in litigation, to which it is also necessary to increase the appropriateness of the supervisory policies.
We therefore have to wait for the “interactions” between the decisions of the ACF and the supervisory interventions of Consob, which should further improve relations between customers and intermediaries, adapting its policies, aiming to a full informative function, as well as becoming an instrument for a proper financial education of the market players.
Vittorio Mirra (*) is Contract Professor of Financial Markets Law at LUISS Guido Carli University in Rome. PhD in Law and Economics. Currently Head of the Conflict Management Division at Banca Monte dei Paschi di Siena (Compliance Area of the banking holding company). He is the author of numerous publications (monographs, articles, commentaries, research papers) on EU and Italian banking and financial regulation, law and economics, civil and company law.
 The European Commission for the Efficiency of Justice, Evaluation of European Judicial Systems, 2012.
 Report “Doing Business 2018”, published by World Bank. On this matter, refer also to OECD (2013), “Giustizia civile: come promuoverne l’efficienza?”, OECD Economics Department Policy Notes, No. 18 June 2013.
 On this matter, Bianco, Giacomelli, Giorgiantonio, Palumbo, Szego, La durata (eccessiva) dei procedimenti civili in Italia: offerta, domanda o rito?, in Rivista di politica economica, 2007, 5, 3; Marchesi, Giustizia: tempi e interazioni con il sistema economico, in I Temi dei rapporti trimestrali ISAE, Rome, 2001; Enriques, Do Corporate Law Judges Matter? Some Evidence from Milan, in European Business Organization Law Review, n. 3/2002; Jappelli, Pagano, Bianco, Courts and Banks: Effects of Judicial Enforcement on Credit Markets, in Journal of Money Credit and Banking, n. 37, vol. 2/2005, 223; Laeven, Manjnoni, Does Judicial Efficiency Lower the Cost of Credit?, in Journal of Banking and Finance, n. 29, vol. 7/2005, 1791.
 Ex multis Danovi, Le ADR (Alternative Dispute Resolution) e le iniziative dell’Unione Europea, in Giur. it., 1997, 4, 326 e ss.; Sticchi Damiani, Sistemi alternativi alla giurisdizione (ADR) nel diritto dell’Unione Europea, Milano, 2004; Licini, Alternative Dispute Resolutions (ADR): aspettative europee ed esperienza USA, attraverso il Libro Verde della Commissione Europea, e la sapienza di un giurista-mediator americano, in Riv. notariato, 2003, 1, 1.
 On this matter let me recall to R. James – P. Morris, The Financial Ombudsman Service: A Brave New World in “Ombudsmanry”, in Public Law, 2002, 640; T. Buck – R. Kirkham, The Ombudsman Enterprise and Administrative Justice, Oxford, 2016; C. Hodges – I. Benöhr – N. Creutzfeldt-Banda, Consumer ADR in Europe, London, 2012.
 Further refer to the Consob resolution No. 16763 dated December 29, 2008.
 Ex multis C. Cavallini, La camera di conciliazione e di arbitrato della Consob: note a “prima lettura” del d.lgs.8 ottobre 2007, n. 179, in Società, 2007, 1446; M. L. Serra, Brevi note sulla disciplina istitutiva della Camera di conciliazione e di arbitrato presso la Consob , in Studium Iuris, 2009, 262.
 Cfr. art. 2 of Legislative Decree No. 179/2007.
 Cfr. T. Mancini, Sul regolamento di attuazione del decreto legislativo 8 ottobre 2007, n. 179 (Camera di conciliazione e di arbitrato presso la Consob), in Riv. arbitrato, 2008, 347; A. Nascosi, La nuova camera di conciliazione e arbitrato presso la Consob, in Nuove leggi civ., 2009, 963.
 Cfr. Consob, Annual report 2016, available on Consob web site.
 In 2012, the Regulatory Impact Assessment for the amendments to the regulation about the Consob Chamber, pointed out the option – to be adopted in the medium-long term – to set a new ADR system, characterized by the binding adhesion of the intermediaries, as like the mechanism currently in force with respect to the banking system (ABF: Arbitro Bancario Finanziario).
 Pursuant to article 5 of ADR Directive, Member States shall ensure that ADR entities:
(a) maintain an up-to-date website which provides the parties with easy access to information concerning the ADR procedure, and which enables consumers to submit a complaint and the requisite supporting documents online;
(b) provide the parties, at their request, with the information referred to in point (a) on a durable medium;
(c) where applicable, enable the consumer to submit a complaint offline;
(d) enable the exchange of information between the parties via electronic means or, if applicable, by post;
(e) accept both domestic and cross-border disputes, including disputes covered by Regulation (EU) No. 524/2013; and
(f) when dealing with disputes covered by this Directive, take the necessary measures to ensure that the processing of personal data complies with the rules on the protection of personal data laid down in the national legislation implementing Directive 95/46/EC in the Member State in which the ADR entity is established.
 The full denomination is “Arbitro per le Controversie Finanziarie”.
 For a thorough analysis, allow me to recall V. Mirra, I sistemi di Alternative Dispute Resolution trovano nuovo vigore: il recepimento della Direttiva ADR e l’introduzione del nuovo “Arbitro per le Controversie Finanziarie”, in Riv. Arbitrato n. 4/2016, 693.
 Cfr. art. 190 of the Italian Consolidated Financial Law (“TUF”: Legislative Decree No. 58/98).
 The bank mediators are subject to the control of a Committee (Comité de la médiation bancaire) chaired by the Governor of the French Central Bank.
 Currently 11 ADR entities are members of the FIN-NET network (they are both of private and public nature).
 Reference is made to Klachteninstituut Financiële Dienstverlening (KiFiD).
 The law (Ley Novembre 22, 2002, n. 44) provided for the following ADR mechanisms: Comisionado para la Defensa del Cliente de Servicios Bancarios before the Banco de España, the Comisionado para la Defensa del Inversor before the Comisión Nacional del Mercado de Valores (CNMV) and the Comisionado para la Defensa del Asegurado y del Partícipe en Planes de Pensiones before the Direccíon General de Seguros y Fondos de Pensiones.
 E.g. Germany, France etc.
 Subjects authorised to carry out investment services.
 Cfr. Italian Supreme Court, section I, sentence October 26, 2015, n. 21711). It has to be recalled also A. Dolmetta, U. Malvagna, Vicinanza della prova e prodotti d’impresa del comparto finanziario, in Banca, borsa, tit. cred., 2014, I, 659.
 The members of the ACF Board are chosen among the following categories:
a) lawyers authorized to practice before the Supreme Court; accountants registered in Section A) of the register of chartered accountants and accounting experts for at least twelve years;
b) notaries with at least six years of experience; ordinary magistrates, in service for at least twelve years or retired; administrative and accounting magistrates with at least six years’ of service or retired;
c) university professors in legal or economic subjects in service or retired; executives of the State or independent Authorities with at least twenty years of seniority graduated in legal or economic disciplines, in service or retired.
Consob employees who in the previous two years have been appointed or assigned to organizational units with supervisory or sanctioning functions in matters falling within the competence of the ACF cannot be appointed members of the ACF Board. Where an employee of Consob is appointed as a member of the mentioned Board, the latter operates with full functional autonomy.
 The Chairman remains in charge for five years, the other members of the ACF Board for three years and they can only be confirmed once.
 Cfr. Consob resolution No. 19701 dated August 3, 2016.
 The appeal with the ACF must, in any case, be filed within one year from the submission of the complaint to the intermediary or, if the complaint was filed before the starting date of the ACF’s operation, within one year from that date.
 «The Technical Secretariat:
 This deadline can be postponed only for the particular complexity or novelty of the issues dealt with or when both parties request it, also in order to attempt the settlement of the dispute.
 The intermediary may at any time ask the Technical Secretariat to publish on its website information on the filing of a judicial proceeding concerning the same facts based on the dispute submitted to the ACF or on its outcome (art. 16, par. 4, of the ACF Regulation).
 So much higher than the initial estimation of about 1.000 appeals expected in the first year of ACF’s operation.
 Data provided by the 2017 Annual Report of the Arbitro per le Controversie Finanziarie.
 The Ombudsman-Giurì Bancario (also competent for some dispute regarding the financial intermediaries and their clients) ceased its activities from January 9, 2017.
 FIN-NET is a network of national organizations responsible for settling out of court consumers’ complaints in the area of financial services. FIN-NET was set up by the European Commission in 2001 to promote cooperation among national ombudsmen in financial services, and to provide consumers with easy access to alternative dispute resolution (ADR) procedures in cross-border disputes about provision of financial services. Currently FIN-NET has 60 members in 27 countries.
 FIN-NET activity report 2016, available at https://ec.europa.eu/info/file/fin-net-activity-report-2016_it.
 The assignment as a member of the ACF has a limited and predetermined duration, after which the Consob employee would come back to be a Public officer.
 Currently, as regards the ABF, there are Boards operating in Bari, Bologna, Milan, Naples, Palermo, Rome and Turin.
 The Consob members are in charge for seven years without chance of renewal.
 The costs of starting the procedure before the ACF will be financed through the Italian “Fund for the extrajudicial protection of savers and investors”.
 Cfr. A. Dolmetta, U. Malvagna, Sul nuovo “ADR Consob”, in Banca, borsa, tit. cred., 2016, III, 277.
 Ex multis E. Ferran, Dispute Resolution Mechanisms in the UK Financial Sector, in Civil Justice Quarterly, 2002, 135, available at http://ssrn.com/abstract=298176; R. James – P. Morris, The Financial Ombudsman Service: A Brave New World in “Ombudsmanry”, in Public Law, 2002, 640.
 This huge amount of appeals will also require a considerable organizational effort by Consob and an appropriate staff for the functions of the Technical Secretariat.
 With respect to Regulatory Impact Assessment in the Administrative Independent Authority in Italy has to be recalled V. Mirra, V. Miscia, L’AIR delle autorità indipendenti: Banca d’Italia e Consob, in Analisi giuridica dell’Economia, n. 2/2013, 517.
 Explanatory report of the consequences on the activities of companies and operators and on the interests of investors, arising from the regulation concerning the ACF, dated May 4, 2016, available on Consob website.
 Cfr. L. Klapper – A. Lusardi – P. van Oudhesden, Financial Literacy around the World: Insights from the Standard & Poor’s Rating Services Global Financial Literacy Survey, Washington, 2015.
 The aim is to help induce intermediaries to pay more attention to “substance than to form” (cfr. M. Onado, L’Arbitro del risparmio e della fiducia. Le responsabilità del nuovo organismo di conciliazione da oggi al debutto, Il Sole24Ore, 09.01.2017).