La tesi approfondisce i profili processuale della responsabilità medica allo scopo di elaborare una proposta alternativa di gestione del contenzioso. Si esamina, altresì, il tema dei limiti di utilizzo della mediazione nelle controversie in cui vengono in gioco interessi di rilievo pubblicistico. / The thesis explores the procedural profiles of medical liability in order to develop an alternative proposal of litigation management.

This work provides several policy proposals capable to strengthen the private enforcement of EU competition law in arbitration. It focuses on the procedural law aspects that are permeated by legal uncertainty and that have not yet fallen under the scrutiny of the law and economics debate. The policy proposals described herein are based on the functional approach to law and economics and aim to promote a more qualified decision making process by: adjudicators, private parties and lawmakers. The resulting framework of procedural rules would be a cost-effective policy tool that could sustain the European Commission’s effort to guarantee a workable level of competition in the EU internal market. This project aims to answer the following broad research question: which procedural rules can improve the efficiency of antitrust arbitration by decreasing litigation costs for private parties on the one hand, and by increasing private parties’ compliance with competition law on the other hand?Throughout this research project, such broad question has been developed into research sub-questions revolving around several key legal issues. The chosen sub-research questions result from a vacuum in the European enforcement system that leaves several key legal issues in antitrust arbitration unresolved. The legal framework proposed in this research project could prevent such a blurry scenario from impairing the EU private enforcement of competition law in arbitration. Therefore, our attention was triggered by those legal issues whose proposed solutions lead to relevant uncertainties and that are most suitable for a law and economics analysis.

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The recent reform in European antitrust enforcement is embodied in Regolation n. 1/2003/ Ce and related Communications. Since 2004 when it came into force, some crytical assessments can already be made. The work starts from some technical analysis of the reform, under a procedural perspective, to assess the proceedings’ real impact on parties’ rights and to criticize its limits. Decentralisation has brought about more complicacies, since community procedural systems are not harmonized, neither in their administrative rules, nor in their civil proceedings, which are all involved in the European antitrust network. Therefore, antitrust proceedings end un as being more jurisdictional in their effects than in their guarentees, which is a flaw to be mended by legislators. National laws shoud be harmonized, community law should be clarified and the system should turn more honestly towards a rationalized jurisdiction-cented mechanism. Otherwise, parties defense rights and the overall efficiency are put into doubt. Italy is a good exemple of how many colmlicacies can outburst from national procedures and national decentralised application. An uncertain pattern of judicial control, together with unclear relationships among the institutions to cooperate in the antitrust network can produce more problems than they aim to solve. As to the private enforcement, Regulation n.1 does not even attempt to give precise regulation to this underdeveloped sector. A continual comparison with U.S. system has brought the Commission to become aware both of the risks and of the advanteges of an increased civil antitrust litigation in fronto of national judges. In order to substain a larger development of this parallel and, presently, difficult way of judicial compensation, it is presently ongoing a consultation among states to find suitable incentives to make private enforcement more appealing and effective. The solution to this lack of private litigation is not to be sought in Regulation n. 1 which calls into action national legislators and proceedures to implement further improvements. As a conclusion, Regulation n. 1 is the outpost of an ambitious community design to create an efficient control mechanism over antitrust violations. It focuses on Commission proceedings, powers and sanctions in order to establish deterrence, then it highlights civil litigation perspectives and it involves directly states into antitrust application. It seems that more could be done to technically shape administrative proceedings in a more jurisdictionally oriented form, then to clarify respective roles and coordination mecanisms in order to prevent difficulties easy to forsee. Some of jurisprudential suggestions have been accepted, but much more is left to be done in the future to improve european antitrust enforcement system.

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