Introduction
Over the past year, Italy has been one of the most dynamic countries in southern Europe when it comes to litigation funding. Indeed, 2023 has witnessed a significant surge in interest from law firms and companies in this innovative solution to legal disputes.
Numerous conferences and meetings have tackled the subject of litigation funding, providing a platform for the exchange of knowledge and ideas among key players in the legal industry.
Furthermore, a significant trend has emerged with the establishment of new partnerships between law firms and litigation funders, marking a significant step toward widespread adoption of this practice in the Italian legal context.
Furthermore, another significant change has characterized the Italian litigation funding landscape during the last year: there was the first mention of litigation funding in an Italian legislative decree. Indeed, although discussed by academics and professionals, litigation funding had never been mentioned or expressly recognised by Italian law before.
The above-mentioned developments clearly indicate that litigation funding has secured a prominent place in the Italian legal market.
In the subsequent sections of this chapter, we will delve deeper into the unique challenges and opportunities that characterise the litigation funding environment in Italy and explore the factors that will shape its future evolution.
i Litigation funders in Italy
The majority of international litigation funders remain sceptical about expanding their operations in Italy, as it is not yet part of their business strategy. This scepticism may be attributed to the well-known length of Italian legal proceedings, making it challenging to predict when a return on investment will be realised.
Moreover, the Italian market carries greater risk, as judges may deviate from previous decisions, making it more difficult to anticipate case outcomes based on precedents.
However, in 2023, the number of litigation funders operating in Italy continued to rise. An interesting development is the entry of a few international funds into the Italian market, seemingly overcoming concerns related to the notorious slowness of the Italian justice system.
These international litigation funders primarily focus on large disputes involving Italian companies, often with cross-border implications.
Concurrently, the number of purely Italian litigation funders is also on the rise. Unlike international funds, the majority of Italian funds concentrate on small to medium-sized domestic disputes.
Lastly, another emerging trend pertains to the increasing presence of book building companies in Italy.
These firms specialise in identifying businesses interested in adopting litigation funding solutions. While book building companies do not directly finance disputes, they rely on capital from litigation funders.
Over the past year, foreign book building companies have also entered the Italian market, likely attracted by the dynamism of the Italian market in private enforcement actions.
ii Collaboration between Italian lawyers and litigation funders
Lawyers play a pivotal role in the expansion and evolution of litigation funding in Italy: typically, it is lawyers who inform companies and individuals about the possibility of obtaining support from a litigation funder and externalising the risks and costs associated with a dispute.
Moreover, in 2023, several leading law firms organised conferences focused on litigation funding, contributing to educating the Italian market.
Another emerging trend involves lawyers specialising in this field, offering assistance to companies and individuals interested in exploring litigation funding solutions. Keeping abreast of market trends and developments enables them to provide new services to their clients.
Likewise, possessing an in-depth understanding of the mechanisms and diverse solutions that litigation funding can offer can confer a competitive advantage upon lawyers and law firms. It appears, therefore, that litigation funding is becoming a new practice area on which several law firms are specialising.
Finally, in the past year, new strategic partnerships have formed between law firms and litigation funders, underscoring the trend of Italian law firms recognising funders as reliable partners capable of delivering innovative solutions to their clients and enhancing the services provided by lawyers.
Indeed, law firms can rely on the expertise and support of litigation funders in managing litigation, particularly in collective actions that inherently demand greater effort owing to their multitude of clients.
Moreover, even law firms with banks, large corporations or major insurance companies among their clients face challenges in collecting their fees, which are still based on an hourly billing model.
The primary reason is that Italian companies today are increasingly conscious of their legal department costs and are moving towards cost reduction. In this context, litigation funding can be a viable solution, as litigation funders cover lawyers' fees.
iii Growing interest of Italian companies in litigation funding
Upon inspection of Italian companies, there is an increasing trend of exploring the opportunity to use litigation funding solutions for various needs.
In the landscape of litigation funding in Italy, the prevalence of small and medium-sized enterprises (SMEs) takes on added significance.
Italy's economic fabric is predominantly woven with SMEs, which not only constitute the backbone of its industries but also often find themselves in need of financial support when navigating complex and potentially expensive legal disputes.
These SMEs, while agile and innovative, may encounter legal challenges that require substantial financial resources to address effectively. Litigation can be a costly endeavour, and for smaller businesses, the financial burden of mounting a legal defence or pursuing a claim can be particularly daunting. This is where litigation funding plays a crucial role.
In addition to the financial support, litigation funders can provide valuable expertise in managing intricate legal disputes, especially those with international dimensions.
SMEs, which often operate on a regional or global scale, may find themselves embroiled in disputes that span multiple jurisdictions, languages and legal systems. Navigating these complexities demands not only financial backing but also strategic insight and legal acumen.
In the world of litigation funding, the Italian economic landscape serves as a testament to the symbiotic relationship between SMEs and financial backers, illustrating how this partnership can empower smaller enterprises to navigate complex disputes and preserve their competitive edge on the global stage.
Small and medium-sized Italian businesses, especially in this period of crisis and economic uncertainty, struggle to pursue legal actions as this would mean taking away financial resources for their core activities. Therefore, the intervention of a funder could be crucial as it would allow them to concentrate financial resources on their business.
Likewise, Italian large corporations are interested in the optimisation of their legal costs. Within these circumstances, the externalisation of the legal expenses and the financial risk of losing a case can become an interesting option for them.
Moreover, besides the financial aspect, the advantage of working with a litigation funder also relates to litigation management.
Typically, in-house lawyers are generally busy and do not have the time to give quick answers to the external lawyers, review their briefs and respond to their requests for clarification. This may prejudice the outcome of litigation or arbitration.
With litigation funding, the funded party has the possibility of outsourcing these activities to be overseen by professionals who share the same interests in the favourable outcome of a case.
iv Fertile sectors for litigation funders
Regarding investment opportunities that the Italian market can offer funders, litigation funding could find fertile ground in the following legal sectors: insolvency proceedings, arbitration and private enforcement antitrust.
Insolvency procedures
Litigation funding has traditionally been used within the context of insolvency proceedings. Indeed, insolvencies lack financial resources to initiate and pursue legal disputes that could enable the recovery of substantial sums, thereby better satisfying the interests of creditors.
In the same way, many Italian companies in insolvency proceedings are considering the intervention of litigation funders, and there are three financial solutions that can be beneficial for them.
First, pure litigation funding by which the litigation funder provides financial support covering the legal expenses for complex and time-consuming litigations or arbitrations.
Second, another financial solution offered by the litigation funders consists in the payment of an upfront fee to the funded party besides covering all the costs related to the disputes.
This could be interesting for the insolvency procedure, which can use the money received upfront for the satisfaction of the creditors.
Finally, insolvency procedures may be interested in selling their claims, and litigation funders can be interested in buying claims if the case is particularly interesting also from a financial perspective.
This solution could have beneficial effects on insolvencies by speeding the conclusion of the procedure and ensuring better economic satisfaction for creditors.
Arbitration
Italian companies have started to make frequent use of both institutional and ad hoc arbitration. However, state court proceedings remain the most popular method of dispute settlement in Italy.
Litigants, indeed, cannot afford – or do not want to pay – the costs of arbitration,[2] which are more expensive than those of state courts' proceedings. In this context, litigation funding may be a viable option.
Moreover, many Italian companies are involved in international arbitrations abroad. Thus, the support of litigation funders could be essential as litigation funders have an international team of professionals with in-depth experience in the legal field that may represent a great advantage for the company in the management of international disputes.
Indeed, they usually have connections with leading law firms all over the world, and this can be beneficial for the outcome of a case since the knowledge of foreign law and access to experienced lawyers can make a tangible difference.
Antitrust: private enforcement
Private enforcement continues to be one of the areas where litigation funding is finding fertile ground in Europe, and Italy is no exception.
One of the most significant cases in Italy is the Corrugated Cardboard cartel case: on 17 July 2019, the Italian Competition Authority (ICA) concluded an investigation, finding that two separate agreements had been implemented to distort competition in the market for corrugated cardboard sheets and the market for corrugated cardboard packaging respectively.[3]
In the light of ICA's decision, companies that purchased corrugated cardboard sheets and corrugated cardboard packaging from members of the cartel in the years from 2004 to 2017 may be entitled to claim compensation for damage suffered.
Since ICA's decision, several litigation funders (at least five) and book building companies (at least two) have worked on the cartel case, offering companies the opportunity to join group actions while externalising the costs and risks associated with the damages claim.
Among the companies that have chosen to utilise litigation funding solutions, there are large Italian groups as well as SMEs. This trend confirms that Italian businesses, regardless of their size, are interested in exploring these new solutions.
Generally, companies harmed by an antitrust violation (e.g., a cartel) are discouraged from bringing a lawsuit owing to the costs of this type of action.
Indeed, in addition to the cost of legal advice, the companies must pay the cost of an economic expert for the calculation of the damage suffered.
Typically, this type of economic counselling is very complex as, in many cases, it is also necessary to assess whether the injured party has passed on its actual loss resulting from the antitrust infringement (overcharge) to the next level of the supply chain by increasing the price of its products or services sold to its customers at the downstream market level (indirect purchasers).[4]
Furthermore, one of the obstacles that victims of antitrust violations usually face is that they would have to sue their business partner and, consequently, jeopardise their business relations.
Joining an action initiated by a litigation funder may have numerous advantages in this respect.
Indeed, litigation funders generally initiate collective actions involving several plaintiffs. In this way, the individual party's position is 'diluted' in the collective action. Therefore, this could at least reduce the risk of jeopardising the business relationship with the defendants that have been sued by all – or most of – their clients or suppliers.
Moreover, the collective action will also have an impact on the judge, as the larger number of parties involved and, consequently, the higher value of the claim will give more strength to the plaintiffs' position.
Another solution offered by the litigation funder is the assignment of the claim.
Through the assignment of the claim, the Italian victim of the antitrust violation obtains compensation for the damage suffered (more precisely, it obtains a sum of money as the price of the assignment of the compensatory claim) without starting legal actions against a business partner, and without having to bear the costs and risks of litigation.
Indeed, in these cases, the assignee litigation funder of the claim sues in its name and on its behalf.
As a result, it is likely that the assignment of the antitrust damages claim can at least mitigate the risk of undermining the business relationship between the victim of the infringement and the company that is being sued.[5] Altogether, by selling the claim, the company can monetise the claim immediately and collect the money, avoiding wasting time in lengthy proceedings and jeopardising relationships with business partners.
2023: Year in review
In the past year, we have seen Italian professionals and companies becoming more interested in third party funding as a solution to the costs and risks related to the disputes.
The sector that saw the most activity was antitrust private enforcement, followed by commercial litigation and arbitration.
Additionally, the increased interest from legal firms in this new tool and the first recognition by Italian regulations have contributed to the proliferation of litigation funding in the market.
Legal and regulatory framework
i First recognition of litigation funding in Italy
On 23 March 2023, the Legislative Decree No. 28/2023 (the Decree), transposing Directive (EU) 2020/1828, was published on the Italy's Official Journal.
The Decree amends the Consumer Code by introducing the possibility to file a claim to protect the collective interests of a group of consumers (class action).
The Decree is of interest for litigation funders operating in the Italian market as it is the first ever recognition of their existence in Italian legislation.
The Decree neither defines nor regulates litigation funding but mentions it twice, thus considering it licit. The only references pertain to the:
- provision in the statutes of entities' by-laws that can bring cross-border actions, measures aimed at preventing and resolving conflicts of interest between the association, its funders and consumer interests; and
- inadmissibility of actions brought in a conflict of interest, especially if the funding entity is a competitor of the accused company in the violation.
In particular, with regard to (a), Italian national consumer and user associations that wish to file representative actions in other EU jurisdictions will have to comply with the requirements listed in Article 140-quinquies.
Among these, entities must provide for rules in the by-laws suitable to ensure their independence and the absence of influence by professionals who have an economic interest in bringing representative actions, as well as appropriate measures to prevent and resolve conflicts of interest that could arise between the entity, its funders and the interests of consumers (Article 140-quinquies (2), Letter (d)).
To comply with this provision, consumer and associations will also have to disclose on their website information on the source of their financings (Article 140-quinquies (2), Letter (f)).
Furthermore, with regard to (b), Article 140-septies regulates the procedural aspects of this action.
In particular, Article 140-septies (5) states that the qualified entity that is pursuing the claim must disclose during the proceedings the amount of funding received or promised by third parties.
Moreover, Article 140-septies (8), Letter (e), states that a judge must deem a claim as inadmissible when, inter alia:
"the action is brought in conflict of interest, particularly if it appears that the person who has funded the action is a competitor of the defendant or depends on him. In this case, the court officially raises the issue and gives the plaintiff a time limit within which to refinance or modify the funding."
ii Litigation funding agreement
Litigation funding and litigation funding agreements are not regulated under Italian law and still represent an unexplored scenario for the Italian authorities.
Given the peculiar features of the litigation funding agreement, it is no easy task to qualify for such a contract.
There might be observable similarities with typical contractual structures governed by the Italian Civil Code. Therefore, it is necessary to clarify what litigation funding is not.
Although there is funding, the contract cannot be considered a loan, according to Article 1813 of the Civil Code.[6]
Indeed, the funder provides financial support, but a typical loan mandates a duty to return money or fungible goods, which does not exist in litigation funding agreements.
In addition, differently to what is usual in a loan, the potential payment of the funded party is normally not connected to the invested capital or to interests (it is a share of what the client is entitled to by the judgment or by the settlement).
These elements exclude the possibility of qualifying the litigation funding agreement as a loan.
Moreover, the litigation funding agreement does not amount to an insurance contract, according to Article 1882 of the Civil Code.[7] In this regard, some essential elements are also missing: in particular, the litigation funder must cover the expenses related to the disputes.[8]
On the other hand, in a typical insurance contract, the insurer is obliged to pay only under the condition of a future and uncertain event. Another difference from an insurance contract is that pursuant to Article 1882 of the Civil Code the insured must pay a premium.
In the case of litigation funding, the funded party does not have to pay anything and will only be obliged to pay a portion of the sums recovered at the outcome of the proceedings if the case is successful.
As a result, the litigation funding agreement is considered an 'atypical' contract, which cannot be qualified regarding the categories of the Civil Code.
According to Article 1322(2) of the Civil Code, parties are free to conclude an atypical contract if it fulfils interests that are worthy of protection according to the legal system. Therefore, it is important to understand whether the litigation funding agreement is consistent with Italian law.
Litigation funding aims at enabling claimants with a meritorious claim to bring litigation that might otherwise stall, as well as avoiding unfair settlements because of an intervening lack of funds.
As such, the funder supports a party to be involved in litigation who wishes to remove any of the costs or risks associated with litigation, or both. If the case succeeds, the funder recovers the costs it has borne and takes an additional agreed success fee.
If the case fails, the funder loses its investment and is not entitled to receive any payment. In essence, the litigation funding aims to transfer to the funder the cost and (financial) risk involved in pursuing justice, level the playing field and enhance access to justice for meritorious claimants.
As a result of the above, among Italian scholars there is the belief that litigation funding agreements fulfil interests that are worthy of protection.[9]
iii Assignment of claims in Italy
Italian companies have shown particular interest in the assignment of claims and, on the other hand, litigation funders are also interested in offering this solution if the merit of the case is solid and there are no major obstacle to the recovery of the litigious sums.
In this regard, in Italy the assignment of claims is governed by Articles 1260–1266 of the Civil Code. According to Article 1260, a creditor may assign any and all of its claims without the consent of the debtor.
However, this principle is subject to certain limitations deriving from specific characteristics of the claim or depending on the fact that the assignment is forbidden under Italian law.[10]
Moreover, Article 1261 of the Civil Code prohibits the assignment of claims to judges, attorneys, notaries and other professionals involved in legal matters.
The provision points out that the aforementioned subjects cannot even be assignees of claims through a different entity or person.
Regarding the assignment of claims, Decree No. 53, dated 2 April 2015, of the Italian Ministry of Economy and Finance provides a list of activities that need to be regarded as financing activities. The list includes any financing related to assignment of claim for consideration.
However, the Italian courts addressed this specific issue in several cases concluding that, in certain circumstances, assignment of claims is not considered a financing activity.[11]
In particular, Italian courts that have addressed the issue emphasised that the assignment of claims causa (i.e., the contract's underlying purpose) is variable and that can serve various purposes (e.g., sale, donation or guarantee).
Therefore, the purchase of claim can occur for consideration or not.
Given the neutrality of the causa contractus of the assignment of claim, to determine whether the activity can be qualified as financial activity, it is essential to examine the individual economic function pursued by the parties through it, representing the interests (causa in concreto).
Legal precedents have made it clear that what is important in determining whether the assignment of claim agreement can be characterised as having (also) a financing purpose is the upfront provision, in favour of the assignor, of a sum of money or another asset that will be subsequently reimbursed within a specified time frame.
Therefore, the Italian courts denied the existence of a financing cause when the contract provides that:
- the consideration for the assignor is equal to the amount of the credit actually recovered, minus a percentage to be paid to the assignee for the services provided;
- if the credit recovery action brought by the assignee is unsuccessful, the assignor will not be entitled to receive any consideration for the same assignment; and
- the assignee is entitled to receive compensation for the services provided – calculated as a percentage of the credit recovered – solely upon the successful recovery of the credit.[12]
Therefore, according to Italian case law, the assignment of a claim cannot be considered a financial activity when the aforementioned conditions are met.
Structuring the agreement
In the early days of litigation funding, litigation funding agreements were fairly streamlined and simple. Later, as the industry evolved, contracts became increasingly sophisticated and complex.
The reason for this is that efforts have been made to meet the specific needs of clients and, at the same time, to prevent any pathological phases that could lead to problems for the funder or the funded party, or both, being confronted.
Consequently, there is no unique litigation funding agreement structure, nor is there a specific structure for this form of contract in Italy.
However, certain precautions must be considered when operating in the Italian market,[13] and it is possible to identify certain clauses that are common in all litigation funding agreements.
i Claimant-side funding
Most litigation funding agreements are entered into by litigation funders and claimants. In such a structure, we can identify two main obligations:
- funder's obligation: to pay all costs related to the litigation or arbitration; and
- obligation of the claimant: to share the proceeds with the litigation funder if the case is successful.
Additionally, a funding agreement will more often include provisions governing the following issues:
- The amount of the investment: the funding agreement will generally define the maximum commitment of the funder, the specific items that are included in the budget (legal fees for the first instance and appeal, expert fees, adverse party costs, etc.), and the conditions for a drawdown of the budget. To avoid budget overruns, and depending on the type of case, funders may work with capped amounts per item or stage of the proceedings.
- Exposure to counterclaims: the funding agreement will specify whether the funding will cover the costs of defending a counterclaim and whether the funder will cover the financial exposure of a counterclaim.
- The funder's remuneration: this can be either a percentage of the recovered amounts, a multiple on the invested capital, or a combination of both. The agreement will also set out the payment waterfall, which defines the priority of payments to the funder, the law firm and the client. Practical arrangements for the distribution of the proceeds will also be provided.
- The exchange of information: correspondence between the client and his or her lawyer and any written material drafted for the client are protected by the attorney–client privilege. The lawyer, therefore, cannot disclose any of this to the funder without the client's express consent. Consequently, the funding agreement will regulate the exchange of information between the client, the lawyer and the funder. This enables the latter to be kept abreast of the progress of the case and to monitor its investment.
- Control or consent rights: to protect its investment, the funder will generally seek to have some degree of control over important decisions in a case, such as filing appeals, terminating proceedings or accepting settlements. Under Italian law, a funder is not prohibited from having a veto right on certain decisions.
- Dispute resolution clause: usually, these clauses provide for English law as the applicable law and arbitration as the dispute resolution method. However, to meet the needs of the client, some international litigation funders are starting to insert clauses that provide for Italian law as the applicable law and the Court of Milan as the competent court or, alternatively, arbitration at the Chamber of Arbitration of Milan (CAM).
- Payment of an up-front fee: in which case the litigation funder advances a portion of the expected proceeds to the claimant.
- Termination rights: in addition to termination for material breach, the funder and the client may also agree on a right for the funder to terminate the agreement if an event occurs that negatively impacts the prospects of the case or an event that makes the case commercially unviable, or the agreement may even allow for termination for convenience.[14]
ii Defence-side funding
Although it is not widely practised enough to be exhaustive, it should be mentioned that there is the possibility of structuring the litigation funding agreement also for the defendant.
Of course, in this case, the difficulty comes from defining the 'success of the case'.[15] Indeed, it is necessary to determine when the litigation funder will be entitled to compensation and how this compensation shall be calculated.
The most common way is the reverse contingency fee. With such an agreement, the funder's profit will be a percentage of the difference between the total value of the claim and the sums paid by the defendant at the end of the proceedings.[16]
Disclosure
i Domestic proceedings
To date, there are no laws or regulations in Italy that require funded parties to disclose the existence of a litigation funding agreement or the identity of the funder.
In the absence of any obligation, the disclosure of the existence of a litigation funding agreement can be a strategic choice. In this way, the counterparty will know the litigation will be pursued until its conclusion (since the time and the money are not an obstacle) and that the funded party will not settle the case if the conditions proposed are not satisfactory.
Nonetheless, the terms and conditions of a litigation funding agreement should always be treated as confidential information by the funded parties and the appointed lawyers. The disclosure of this information can be used by the counterparty against the funded party.
ii Arbitration
In arbitration proceedings, there is also no general duty to disclose the existence of any litigation funding agreement.
However, given the arbitrators' obligations of impartiality and independence (in both national[17] and international[18] proceedings), the existence of a litigation funding agreement might be relevant for the purpose of evaluating any possible conflicts of interest on the part of the arbitrators.
Therefore, Article 43 of the 2019 Arbitration Rules of CAM expressly states:
The party that is funded by a third party in relation to the proceedings and its outcome shall disclose the existence of the funding and the identity of the funder. Such a disclosure shall be repeated along the proceedings, until its conclusion, where supervening facts so require or upon request by the Arbitral or the Secretariat.
This Article broke ground on litigation funding's acceptance in Italy in 2019, at least in the context of commercial arbitration, further confirming the importance of litigation funding in the Italian market.[19]
Legal Costs
Pursuant to Article 91 of the Italian Code of Civil Procedure, the loser pays concept underlies the Italian legal system (i.e., the judge orders the losing party to pay the legal fees and expenses of the successful party).
The topic of how the expenses of a litigation funding agreement would be considered under Article 91 of the Code of Civil Procedure has not yet come up because litigation funding in Italy is still in its infancy, and there are no precedents.
More precisely, a scale is used to determine these charges, which include legal fees and court costs, based on the amount that is in dispute. This approach can give all litigants a high level of predictability regarding the legal costs that they must pay if they lose a case.
Ministerial Decree No. 55/2014 governs the calculation of legal expenses. This Decree sets out parameters and criteria for the calculation of fees based on, inter alia, the value of the proceedings, the complexity of the dispute and the number of parties involved.
This amount should be added to the court administrative costs and legal charges (subject to value-added tax, which is currently 22 per cent) together with a mandatory contribution (currently 4 per cent) to the Italian social security pension fund for lawyers.
Furthermore, it should be mentioned that on 8 October 2022, Decree 147/2022 was published, which entered into force on 23 October 2022. This Decree updates the forensic parameters to the cost of life and introduces hourly rates, fees for insolvency proceedings and incentives in the case of settlement.
Italy: Conclusions and outlook
As mentioned at the beginning of this chapter, 2023 has been an extremely important year for the Italian litigation funding market and, given the latest trends, there could be exponential growth in litigation funding in Italy in the near future.
In this regard, a variety of fields may be covered by litigation funding.
First, litigation funding may play a crucial role in insolvency proceedings, which may increase as the recession becomes more severe.
Second, litigation funding will increasingly take hold in domestic and international arbitrations, solving the problem of the excessive cost of such procedures. Many Italian companies do their business abroad and find themselves in difficulty when they must litigate in foreign jurisdictions.
Most notably, the area that appears most targeted is private enforcement for antitrust violations. These cases, by their nature, are complicated and costly; therefore, support from litigation funders can be essential for victims.
Furthermore, numerous Italian businesses have been struggling financially over the past few years as a result of the covid-19 outbreak, the start of the war in Ukraine and the rise in costs.
These businesses need to focus their financial resources on strategic areas that are more crucial to company development than litigation costs in this environment of extreme economic uncertainty.
In these circumstances, litigation funding may represent an interesting option.
In conclusion, Italy is ready to embrace this new financial solution, which could bring several benefits to the country. Indeed, Italy could become a more attractive venue for dispute resolution, and Italian companies and individuals with meritorious claims could bring legal actions to protect their rights without incurring any costs.
Footnotes
1 Giacomo Lorenzo is senior legal counsel at Deminor.
2 See R Sali, 'Il finanziamento di terzi in arbitrato', in Rivista Trimestrale di Diritto e Procedura Civile, No. 2, 2022, p. 339. In that article, the Deputy Director of the Chamber of Arbitration of Milan (CAM) reports on the difficulties of parties paying the costs related to arbitration on time.
3 Italian Competition Autorithy: Case I805/2019 (you can find the decision at the following link: https://www.agcm.it/dotcmsCustom/getDominoAttach?urlStr=192.168.14.10:8080/41256297003874BD/0/BE9F021100ACF4F8C1258454005D2B01/$File/p27849.pdf).
4 G Afferni, 'La cessione del credito risarcitorio per violazione del diritto antitrust', Diritto del Commercio Internazionale, XXI, Fas. 4, 2017.
5 id.
6 G De Nova, 'Il finanziamento della lite: il Litigation Funding Agreement', in Rivista trimestrale di diritto e procedura civile No. 2, p. 268. G M Solas, 'Finanziare il contenzioso: esperienze a confronto', in Contratto e impresa - Europa, 2016, p. 184 ss.; L Coppo, 'Il contratto di finanziamento della lite da parte di terzi: profili sostanziali': http://fundit.unito.it/, p. 41; L Castelli, S Monti, 'Third party litigation funding: quali prospettive in Italia?', in I contratti, 2019, p. 585.
7 L Coppo, 'Il contratto di finanziamento della lite da parte di terzi: profili sostanziali': http://fundit.unito.it/, p. 42.
8 The qualification of the litigation funding contract as an insurance contract was excluded by the German public authority for insurance in 1999: see the comparative remarks of E D'Alessandro, Contratto di finanziamento della lite, (No. 2), p. 152.
9 G De Nova, (No. 7), p. 268. G M Solas, (No. 7) pp. 267–268; L Coppo, (No. 8), p. 48; L Castelli, S Monti, (No. 7) p. 588.
10 More precisely, types of claims that cannot be assigned are: claims of a personal nature; claims in which the assignment is forbidden by law, (inter alia, maintenance claims pursuant to Article 447 of the Civil Code; claims relating to salaries, pensions and any other remuneration of employees and pensioners of the state, of public entities and of undertakings entrusted with a public communications or transport service and of private undertakings pursuant to Article 1 of Presidential Decree, No. 180 of 5 January 1950; claims of contractors against the state or other public bodies, unless the administration concerned agrees to the assignment pursuant to Article 9, L. 20.3.1865, No. 2248, Annex E; and family allowance claims pursuant to Article 22 of Presidential Decree No. 797 of 30 May 1955); and if the parties agree to exclude the assignment of claims pursuant to Article 1260, last paragraph, of the Civil Code. In this case, the agreement is not enforceable against the assignee, unless it is proved that he or she was aware of it at the time of the assignment.
11 Italian Supreme Court No. 27892/23; Italian Supreme Court No. 21765/2019; Court of Bergamo, 5 February 2021, No. 225; Court of Bergamo, 8 February 2021, No. 234; Court of Busto Arsizio, 22 December 2021, No. 1816; Court of Busto Arsizio, 17 February 2022, No. 232; Court of Busto Arsizio, 28 March 2022, No. 481; Court of Milan, 28 February 2022, No. 1734; Court of Milan, 27 December 2021, No. 10869; Court of Milan, 9 September 2021, No. 7187.
12 Court of Milan No. 1734/2022; Court of Milan No. 10869/2021.
13 For instance, if the litigation funding agreement involves a weaker party, such as a consumer, the funding agreement should therefore be tailored accordingly.
14 Benoot, 'Spotlight: structuring litigation funding agreements in Belgium', Lexology, 22 November 2021: https://www.lexology.com/library/detail.aspx?g=18718dbf-37da-49c8-a50d-bce941c4bd5c (2 May 2022).
15 E Samra, 'The Business of Defense: Defense-Side Litigation Financing', University of Chicago Law Review, Vol. 83, No. 4, October 2016: 2299–2341.
16 id.
17 See, for instance, Article 18 of the Regulations of the Milan Chamber of Arbitration.
18 Namely, the International Bar Association Guidelines on Conflicts of Interest in International Arbitration.
19 F Banti, The Third Party Litigation Funding Law Review: Italy, 2021: https://www.lexology.com/indepth/the-third-party-litigation-funding-law-review/italy.