IL CONTENZIOSO TRA BANCHE E CLIENTI: APPROCCI COMPARATISTICI E POSSIBILI STRATEGIE RISOLUTIVE

The main object of this research paper is the phenomenon of litigation in banking and finance area in the Italian and English juridical system, considering its main features and some possible solutions, by instruments as Alternative Dispute Resolution (ADR). In the introduction it is better specified the focus of the research and the situation of Italian civil procedure, with all the well known overwhelming of the courts and the long time duration of the single actions. In banking and finance area these problems reached a critical point, because of the extremely high number of current contractual relationships between banks and clients, because of the corrosion of the fiduciary relationship between the parties, especially after the recent economic crisis, and even because of the global economic damages caused to the whole Italian economic system. In the first part of this research the above mentioned issues are recalled under a more technical point of view, to point out the relevant procedural rules necessary to start the examination of the most important cases and examples of litigation in banking and finance area in the last years. The first case is about the application of the so called ius variandi, the bank’s faculty to change, under some conditions and limits defined by law, the economic and contractual terms of a relationship, both unilaterally and by a separate agreement. The second case is about the application of an overdraft bank charge and all the following law reviews by the years. The third case is about the compound calculation of the interests in a financial relationship, well known as anatocism, that determined huge and, often, undue benefits for banks and financial intermediaries. The fourth case is about the use of personal securities and the adoption by the banks of forms of independent or omnibus securities quite different from the model of the standard bank guarantee and closer to the model of the “garantievertrag”, autonomous from the secured relationship. The last case is an overview about the litigation in finance relationship, for example about derivative contracts and all the cases characterized by a situation of asymmetry of information between clients and banks. In the second part the main focus is the ADR system, with a digression about its history and some basinal principles, the communitarian legislation from the first nineties till now, with the adoption of Directive 52/2008 UE and the italian implementation, with the most important example of ADR: the Arbitro Bancario Finanziario (ABF). Then the English procedural system, with its more relevant features, even problems as the high and unpredictable costs, innovations and recent reviews is examined in details, especially in connection with banking and financial litigation. The next immediate passage is to consider the ADR system in England and especially in banking and finance area, how that procedures represent the main dispute resolution track (when civil actions are only a sort of safety backdoor for non settleable cases) and how the legislation built up a system of protection of clients, especially consumer and retail clients grounded on Supervisory Authorities and independent Ombudsmen (as the Financial Ombudsman Service, FOS). A practical case is taken as example and it is about bank charges application (a very similar circumstance to the above mentioned italian overdraft charge). In the end a statistical report of the activity of both ABF in Italy and FOS in England points out some differences that represent the most important features of the two legal systems, even in case of a juridically similar approach to ADR solutions. The conclusions are meant to recall the evidences and the issues previously analyzed, to compare them and to specify that an approach to the litigation in banking and financial area issue is impossible without an autonomous study and research of the problem, even using instruments taken from other sciences and disciplines.