La direttiva dell’Unione europea sulla risoluzione alternativa delle controversie dei consumatori e il suo recepimento in Italia e in Spagna: una comparazione delle diverse soluzioni (II)

The comparison between the Italian and the Spanish legal systems in the field of ADR suggests some conclusive remarks. In none of the two legal systems the recourse to mediation seems to have reached the desired results. In particular, the Italian regulation concerning consumer mediation appears inadequate in the concrete application and it does not even seem to fully transpose the principles underlying the Directive. With regard to Spain it can be noticed that mediation and conciliation procedures have received limited attention. In particular it must be underlined that, unlike Italy, mediation takes place exclusively within the framework of the arbitration procedure, while conciliation takes place both within and outside legal proceedings. With regard to arbitration a more significant difference can be found between the two legal systems. Indeed Italy did not introduce any specific discipline on consumer arbitration in general, and therefore only the “traditional” arbitration is provided, which is not adequate to consumer disputes. Exception has to be made for the special arbitration procedure available to consumer disputes in the finance and banking sector, which presents its own peculiarities. The Spanish legal system, on the contrary, provides for a specific and articulated regulation on consumer arbitration, the “arbitraje de consumo”. This special arbitration procedure is appreciated by consumers and it has become the most commonly used ADR scheme, in particular in relation to small claims. The reasons behind the success of the arbitraje de consumo lie in the peculiarities of this procedure, which is autonomous and much different from the traditional arbitration. In conclusion and to sum up, it is the presence of an institutionalized structure and of an efficient administrative dispute management system the key to success of the consumer arbitration in Spain. This is what emerges also from the comparsion with the Italian experience related to the “Arbitrato bancario e finanziario” (“ABF”), dealing with disputes opposing clients to banks and financial intermediaries.