24 October 2017

Special conciliation and arbitration chamber for religious congregations

Does the thought of having to sue or, even worse, being sued in an Italian court give you cold sweats? You’ve read or heard about the interminable lengths of litigation in Italy, its costs and byzantine procedures? Have you sworn to yourself that you would do whatever it took not to get caught-up in this mess? Have you been tempted to forego your legitimate rights just to avoid litigation? In difficult pre-contentious situations have you wondered how you might arrive at a compromise with the other party without necessarily going to court on the question?

These questions haunt many an Italian business man or woman as well as private individuals. The problem is all the more acute if the party is a foreigner with little or no acquaintance with Italy, its legal system and with contentious procedures generally. They are also legitimate concerns for religious congregations who are potentially exposed to litigation in any number of areas from supply contracts to employment agreements, from property sales and leases to tax issues, etc.

The Pros of Methods for Alternative Dispute Resolution

However, courts and tribunals are not the only instances for the resolution of disputes. Methods for Alternative Dispute Resolution (ADR), of which the most common is arbitration, have been available to and used by the business community for many decades and are fully recognized by the Italian legal system. ADR could be advantageous for the religious congregation community for a number of reasons.

In comparison to ordinary litigation, arbitration is leaner, more flexible, quicker and cheaper. It is also totally confidential and it has no language or territorial constraints. Also, a specialized arbitration chamber can take into account special group needs and sensibilities.

Religious congregations can be conceived as comprising such a special group. Indeed, while they face much the same issues as any other entity in dealing in commercial and civil matters, their goals and approaches often vary in important ways from those of the business community.

In this respect the amicable or equitable resolution of disputes is often felt to be more important than arriving at a purely legal solution.

Special Conciliation and Arbitration Chamber for Religious Congregations

We have been working with the Italian Arbitration Association (Associazione Italiana per l’Arbitrato or AIA) on ways to make these advantages available to religious congregations.

The proposal is to establish a Special Conciliation and Arbitration Chamber managed by AIA dedicated to civil and commercial disputes in which at least one party is a religious congregation. This will not be an “ecclesiastical” tribunal; it will be a fully civil judicial instance but with conciliators and arbitrators who are sensitive to the particular needs and purposes of religious congregations.

The new chamber should be up and running by the Summer of 2015 and it will be officially presented at a special AIA conference of which you will be advised.

This project is still in the construction phase; any thoughts or ideas you might have are important to us. In the meantime, we are looking to create a list of possible conciliators and arbitrators who have the required legal/commercial expertise as well as the necessary “sensitivity” to the needs of religious congregations. We would be pleased to receive your suggestions in this regard.

Please fill out this form (it will only take 2 minutes) to help us shape the Special Conciliation and Arbitration Chamber taking into account your needs and desires.

The Need for an Arbitration Clause

Arbitration being a private form of justice it requires the specific agreement of the parties either once the dispute has arisen or, more commonly, in the underlying contract. If one wants to take advantage of this form of dispute resolution in respect of a certain contract, it will necessary to include an arbitration clause in the contract. One task will be to work with associations which group together religious congregations around commercial and civil questions (e.g., the CNEC) to attempt to have them insert an AIA arbitration clause in standard supply contracts.

P.S.: Please note that not all legal issues can be submitted to arbitration. For example, tax, labor, and other disputes considered of public interest cannot be submitted to arbitration. Even here, however, some of these issues, e.g. employment questions, can be submitted to conciliation proceedings.

P.P.S.: As we move forward on this project you shall receive more specific information about conciliation and arbitration and how they work in practice.


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