Dispute Review Board in Italian Public Procurement

Roberto Oliva

The so-called “Decree Unblock-Construction” (“Decreto Sblocca-Cantieri”) (decree No. 32 of 18 April 2019, converted into law No. 55 of 14 June 2019) reintroduced, in the Italian system of public procurement, the advisory technical committee (“Comitato Consultivo Tecnico”), already provided for by Article 207 of legislative decree No. 50 of 18 April 2016 (repealed by legislative decree No. 56 of 19 April 2017).

This committee is in many respects similar to the Dispute Review Board well known by international practice (regulated, for example, by the ICC: the current rules are available here), and also by the internal one (indeed, the Chamber of Arbitration of Milan adopted a set of DRB rules, which are available here).

The main differences between the international experience and the Italian committee concern the composition of the board (three members) and the fact that its members may not be independent (the parties could even appoint their employees). Furthermore, it does not seem possible to delegate binding decisions to the committee. In addition, if the parties agree to the solution proposed by the committee, this does not amount to a settlement agreement (as it was under the repealed Article 207 of legislative decree No. 50 of 2016): as a consequence, the characterisation of this agreement is uncertain.

In any case, in my opinion, the reintroduction in the Italian system of public procurement of an instrument similar to the dispute review board should be welcomed with favour.  In fact, it is a very useful tool for settling at the outset conflicts between employer and contractor and avoid that these conflicts result in a dispute. Moreover, its use in the public procurement sector could also act as a driving force for its diffusion in the private sector.

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