Cecilia Carrara: "We understand the specific needs and legal culture of German clients"
The head of Legance's German desk tells us about the importance of that desk, and how Italy can do better as a seat of arbitration.
Leaders League: You are head of Legance’s German desk. How did you come to this position?
Cecilia Carrara: Legance is a “national champion”: a 100% Italian top-tier firm with an international vocation. In order to accompany our Italian clients in their transactions abroad, and be best placed to assist foreign clients seeking legal assistance with the Italian market, our firm has developed a system of country partners as a key element of its international strategy. The function of the country partners, selected for their background, language skills and network, is to ensure solid relations with the best firms operating in the foreign jurisdictions and monitoring the flow of inbound and outbound work in the best interest of the clients and the firm.
I am one of the country partners for the German-speaking jurisdictions and Eastern Europe, and supervise the organization of the work that we are requested to carry out when knowledge of the German language is required. I studied and worked for many years in Germany, starting from university. Assisting German-speaking clients and/or being involved in matters that have a German angle is a significant part of my profession.
In what ways does Legance add value for German clients?
Legance is a top-tier Italian firm, but its professionals understand the specific needs and legal culture of German clients, be they in-house counsel or colleagues at German firms. We know what a German client or law firm is likely to expect and we strive to fulfil their expectations. This allows the immediate creation of a climate of mutual trust. At the same time, we are recognized on the domestic market as a first-class, full-service law firm, so we can offer our German clients top-notch legal assistance covering all areas of business law.
Could you walk us through some of the most interesting German-Italian work you have handled?
My personal practice is divided between corporate and international arbitration work. In terms of corporate transactions, I can mention that I have for many years assisted a large German automotive group with several extraordinary matters in Italy. But I am very proud to have many clients of the German Mittelstand, that I have sometimes assisted when entering the Italian market, either through joint ventures or by acquisitions, and/or assist with the ongoing needs of their Italian subsidiaries.
As for my arbitration practice, I feel honored that not only I have been acting as counsel or co-counsel in several arbitration disputes between Italian and German entities, but I have been also appointed arbitrator, and presiding arbitrator, in arbitration proceedings involving German and non-German entities bearing no connection with Italy, and sitting with distinguished German colleagues on the panel.
What are the current hot topics in the world of international arbitration, and what will 2021 bring?
The current hot topics are the use of artificial intelligence, virtual hearings, simplified procedures and emergency measures. Covid-19 has accelerated the importance of these issues and created awareness among the community of users. In 2021 we will see many awards of proceedings commenced before the outbreak of the pandemic, and many hearings that were postponed in 2020 will eventually take place in 2021, either physically or in person. So what we saw in 2020 was a prelude to the developments that we will see in 2021.
Third-party funding is likely to progressively gain importance, including in those jurisdictions that had less experience in it until today. This is due to two main factors: corporates will have less liquidity in the current economic context, and there is less distrust in the way funders operate, thanks to the greater knowledge in the market of the applicable rules, and thanks to a greater level of transparency achieved due to the rules adopted by arbitration institutions on disclosure.
My sense is that the changes brought by the pandemic to the way we work will also prompt more spin-offs and the creation of new boutique firms in the field of arbitration.
What, specifically, does Italy need to do to become a more influential seat on the global arbitration stage?
To become a more influential seat on the global arbitration stage, Italy needs a reform of the section of the civil procedural code on arbitration. The current rules are already in line with the UNCITRAL Model Law, with some exceptions. Notably, under the Italian rules of procedure, arbitrators cannot grant interim measures and the grounds for setting aside arbitration awards are not identical, and might appear broader, than those included in the UNCITRAL Model Law. Even though these two elements in practice may not play a crucial role in most cases, they have an influence on how Italy is perceived as a seat.
Unlike other influential seats of international arbitration, unfortunately Italy does not attract many foreign practitioners to exercise their activity. Now, which came first, the chicken or the egg? On the one hand, the lobby of Italian lawyers is very large and quite conservative, which leaves little room for competition from abroad. On the other, open-mindedness would favor the opening of new markets, such as international arbitration. The younger generations are less restricted by language and cultural barriers, so hopefully there may be a positive evolution in this direction.
Lastly, influential seats are those where national courts are also perceived by foreign investors as efficient, in line with the needs of international investors, neutral, and arbitration-friendly. Even though Italian judges in general are supportive of arbitration, a lot should still be done to improve the efficiency and the international image of the Italian courts.
Could you walk us through some examples of the pro bono cases you’ve handled?
Since we referred to the German angle of my practice, I would like to mention one case first: I assisted in 2017 and 2018 the family of an Italian victim of the 2016 Berlin terror attack, including communications and meetings with the Italian and German Authorities, establishment through expert evidence of the causes of the death of the victim and of potential negligence on the side of the German authorities, identification and analysis of the legal framework in Germany and Italy on the indemnification regime of the victims of international terror attacks, and the filing of the relevant applications with the competent Italian Authorities. The initial reaction of the German authorities was highly inadequate, but over the months this attitude has changed.
A second example: in 2019 and 2020 Legance collaborated with Antigone, an Italian NGO for prisoners’ rights, and MSD Italia to produce a “Brief Guide to the Exercise of the Right to Health in Italy”. The Guide, written in plain language, contains the essential information on the rights and duties of foreigners in Italy wishing to access public healthcare. In particular, the Guide examines the condition of persons detained in national prisons or released. The aim of the initiative is to provide a user-friendly vade mecum to the most vulnerable parts of the population and to the sanitary operators on the administrative-legal aspects related to foreigners’ access to social health services.
A third interesting example: we assisted Unicef in preparing position papers in connection with the Italian emergency legislation on public order and security and its relationship with the international law of the sea and human rights. In particular, the public debate concerned whether there is a prevailing obligation of the harbor authorities to rescue the migrants at sea, especially if minors are involved, and the non-refoulement principle.
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