Services

The Firm has gained extensive experience in complex and high-value matters concerning the interpretation and application of guarantees or bonds provided by major insurers in a wide range of economic activities. In particular, Attorney David Morganti began his professional journey in this field while working as an in-house lawyer for one of the leading insurers in the market, representing them at meetings of the former Intesa Credito e Cauzioni following the entry into force of Article 1 of Law No. 348 of June 10, 1982.

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Having acquired significant experience in this area, he has continued to handle such matters as a freelance professional for major insurers in the market. Specifically, he has provided legal assistance, both in and out of court, for issues related to surety insurances and public works contracts, surety insurances to guarantee the bid or performance of a contractual obligation, surety insurances to guarantee advances and balances, other surety guarantees in procurement matters (project financing, obligations of the general contractor), surety insurances to guarantee customs duties, VAT refunds, and more.

Over the years, the Firm has addressed issues related to the enforcement of first-demand guarantees provided to Provincial Agricultural Consortia for the fulfillment of their obligations towards Federconsorzi and surety bonds provided to AIMA, later merged into AGEA, for grants provided to tobacco and olive oil producers.

 

In general, the firm has gained significant professional experience in the following areas:

(i) Compliance with the requirements for the regularity of the surety policy regarding what is provided by the tender specifications; (ii) Procedural tools available to the ordering party and the guarantor to prevent the enforcement of the bond; (iii) Exceptions that can be raised by the guarantor against the beneficiary; (iv) Unfairness of clauses inserted in surety policies; (v) Limits of the applicability of the legal regulation of the insurance contract and the surety to surety policies; (vi) Preconditions for the action of recourse under Articles 1950 and 1951 of the Civil Code; (vii) Preconditions for the action of relief under Article 1953 of the Civil Code; (viii) Consulting for a leading construction group on surety issues related to project financing and obligations undertaken by the general contractor.

 

Below are some cases handled by the Firm:

a) Contestation of irregularity, as it did not comply with the tender specifications, of a bond provided by surety policy issued to guarantee the participation of a company in a tender for the maintenance and cleaning services of the Leonardo Da Vinci Airport in Rome's restrooms.

b) Contestation of the autonomous guarantee contract nature of a surety policy entered into under direct co-insurance to guarantee the reimbursement of a public grant for an amount of Lit. 11,870,000,000 granted to a company under Article 32 of Law No. 219/1981 ("Conversion into law, with amendments, of the decree-law of March 19, 1981, No. 75, containing further interventions in favor of the populations affected by the seismic events of November 1980 and February 1981") for the construction of fire prevention fittings and components.

c) Contestation by the main debtor of the payment made by the guarantors under a surety policy entered into by an Austrian company to guarantee participation in a tender for the award of works to double a tunnel on the Rome-Viterbo railway line, following the revocation of the award of the contract due to the fault of the successful tenderer.

d) Recourse action against the main debtor by the insurer that provided a bond by surety policy to guarantee the performance of a construction contract worth € 8,000,000 for the disposal and transformation of ebony.

e) Relief action against the allegedly defaulting temporary joint venture in a construction contract for the construction of a university hospital commissioned by a university in Naples.

f) Recourse actions against importing companies, following the enforcement of surety policies provided to guarantee compliance with customs obligations and subsequent challenge by the importing companies of their joint liability with the freight forwarder.

g) Contestation of the unlawful enforcement by the Tax Administration of a surety policy provided in favor of a company for the fulfillment of customs obligations, as it occurred after the expiration of the guarantee, as the assessment notice was served when the policy had already expired and for failure to respect the semi-annual deadline under Article 1957 of the Civil Code.

h) Contestation of the enforcement of a policy entered into by a company to guarantee its own default in favor of a credit institution that granted it a credit line, due to the accessory nature of the guarantee and the consequent opposability to the creditor of the exceptions relating to the main relationship as well as the failure to previously enforce the main debtor and the failure to prove the default of the main debtor.

i) Insertion into the bankruptcy liabilities of an oil mill following the enforcement by AIMA of surety policies entered into to guarantee the reimbursement of amounts advanced by the State Company as aid for the consumption of olive oil.

l) Insertion into the bankruptcy liabilities of a winning company of a public contract for the supply of uniforms and uniforms for the Army with simultaneous contestation of the inapplicability of Article 1952 of the Civil Code, following the enforcement by the Ministry of Defense of surety policies entered into to guarantee the default of the winning bidder to the contract.