The Technical Advisory Bord in Italian Public Works Contracts

As a response to certain effects of the COVID-19 pandemic, the Italian Government adopted the Law Decree No. 76, dated 16 July 2020, converted into Law No. 120 dated 11 September 2020 (the “Law Decree”) concerning urgent measures in Public Works. Article 6 of the Law Decree sets forth that by 31 December 2021, each Contracting Authority has to mandatorily appoint a Technical Advisory Board (“TAB“) to settle all disputes in relation to Public Works with an amount equal or above the European Relevance threshold (which is the monetary value to whom the EU harmonized set of rules apply). The TAB has many similarities with a Dispute Boards often used in international construction contracts.

Pursuant to Article 6 (3) of the Law Decree the determination of the Technical Advisory Board is generally qualified a “contractual arbitral award” as set forth by Article 808 ter of the Italian Code of Civil Procedure (“Arbitrato Irrituale”). The Arbitrato Irrituale, however, does not follow the provisions of the Italian Code of Civil Procedure but other rules established by the parties or by special institutions and ends by a decision of the TAB, which in its nature is considered a contract between the parties.

As highlighted by first authors (see, Francesco Campione, Il c.d. decreto semplificazioni e la figura del collegio consultivo tecnico, Judicium, 16 December 2020) such mechanism raises issues as to the compatibility of a mandatory arbitration in public contracts with the principle of the contractual autonomy of the parties and the right of access to ordinary justice pursuant to article 24 of the Italian Constitution. Another open question is whether such “contractual award” rendered by the TAB is enforceable under 1958 New York Convention.

To find out more, stay tuned……

Matteo Bordoni