Litigation and enforcement in Italy: overview

A Q&A guide to dispute resolution law in Italy.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

The Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.

Contents

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to settle large commercial disputes?

Most large commercial disputes in Italy are entrusted to the ordinary courts. However, increasing numbers of large commercial disputes are settled by arbitration, which in principle guarantees a faster process compared with ordinary court proceedings. Mediation is uncommon.

Legal proceedings in Italy are broadly inquisitorial rather than adversarial, as the judge, rather than lawyers, heads the proceedings and takes the initiative in developing the case. However, the system is not truly inquisitorial, as parties are responsible for presenting the law, facts and evidence to support their claims.

 

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?

The basic statute of limitation (prescrizione) rule prescribes that a claimant has ten years (starting from when the right can be exercised) to start proceedings in court. The Italian Civil Code provides for shorter statutes of limitations in some specific cases. Claims based on tort are time-barred after five years from the day on which the fact occurred (except when the tort also amounts to a crime, where the same time limit under the criminal law applies to the civil case). Claims to recover rent and interest, as well as claims based on company matters, are time barred after five years.

The statutes of limitation are shorter for claims to recover:

  • Fees due to a broker (one year).

  • A monthly salary (one year).

  • Salary to be paid on the basis of period in excess of one month (three years).

  • Consideration due to retailers for products sold (one year).

  • Consideration due to public notaries or other professionals (three years).

  • Consideration due to innkeepers and/or restaurant owners (six months).

  • Claims based on transport (one year) or insurance agreements (one or two years, depending on the cause of action).

The statute of limitation rules are mandatory and cannot be departed from by the parties. Limitation can be waived by a party only after it has occurred.

Service to the other party and/or the filing in court of a civil complaint interrupts the course of any statute of limitations. The statute of limitation does not run during civil proceedings and re-commences running the day after the judgment becomes final (that is, when it cannot be subject to any further judicial scrutiny).

Besides time limitation, a party's right may be subject to a further requirement of asserting it within a very short time period (decadenza) that applies for example to a notice of non-conformity of purchased goods, or to a notice of defects in a construction agreement. Parties may depart from the statutory decadenza period, provided that the period agreed does not make the exercise of rights unreasonably difficult for the aggrieved party.

 

Court structure

3. What is the structure of the court where large commercial disputes are usually brought? Are certain types of dispute allocated to particular divisions of this court?

Civil proceedings in Italy are conducted before the lower courts (giudici di pace) or in the higher court tribunals (tribunali) which all exercise their power over a limited geographical district.

Italian tribunali are competent to hear all civil cases exceeding an overall value of EUR5,000 in the first instance, as well as to issue precautionary/urgent measures.

Disputes on IP, competition and/or corporate law are devolved on an exclusive basis to the tribunals' specialised divisions (sezione imprese), which there are 21 spread throughout Italy.

First instance decisions issued by tribunals may be appealed against before the Courts of Appeal (Corti d'Appello).

The Supreme Court of Cassation (Corte di Cassazione) heads the jurisdiction and ensures correct observance and the uniform interpretation of national laws. The Court of Cassation cannot overrule the trial court's interpretation of facts and evidence but may correct or confirm the lower courts' interpretation or application of material laws and/or procedure. Italian law does not recognise a principle of binding judicial precedents. A Court of Cassation decision is binding only in the case under scrutiny and does not bind any other judge in ruling on similar cases.

 

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/requirements

Mandatory requirements to become a lawyer (avvocato) include:

  • Graduation from a university faculty of law.

  • Taking the examination to be admitted to the bar.

  • A 18-months legal traineeship under the supervision of an Italian qualified lawyer.

Lawyers admitted in Italy have the right of audience to conduct all cases, with no distinction between criminal, civil, commercial or administrative disputes.

Lawyers cannot practice before the Supreme Court of Cassation, unless they take a specific examination after having accrued at least five years' experience.

Foreign lawyers

Foreign lawyers from the EU can practice in Italy on a regular basis, provided that they are registered with the Italian Bar Association as "foreign lawyers established in Italy" and that they are assisted by Italian admitted lawyers. After three years, they become eligible to be registered and act without the assistance of any Italian practitioner.

 

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?

Agreed counsel fees can include:

  • Hourly rates (ranging normally from EUR150 per hour up to EUR700 per hour).

  • Flat fees.

  • Contingency fee ("no-win, no-fee") arrangements.

If there is no agreement, a compulsory fixed tariff system applies. This mechanism provides for pre-determined fees for each stage of the proceedings according to the court in which the proceeding is held.

 
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

Contenders normally fund their respective litigation costs and the unsuccessful party is not necessarily ordered to refund the winning party's legal costs.

Third parties are not prohibited from funding litigation, and a claim can be assigned to a funding third-party.

Insurance

The most common insurance policies, such as those against professional malpractice or directors' liability, generally include limited coverage for legal fees in case of a dispute.

 

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?

In principle, hearings are not public, except for those scheduled for the final discussion of the case. The documents filed by the parties in court are confidential and available only to them. Decisions are available to the public.

 

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?

Other than participating in mediation, which is required by agreement or law, no other particular steps need to be considered before commencing large commercial court proceedings.

 

Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

Ordinary proceedings are as a rule commenced by serving the adverse party with a writ of summons, which:

  • Concisely states the claims and the relief sought.

  • Contains the supporting documents and the evidence which are to be called on in support of the claims.

  • Indicates the date of the first hearing, subject to the judge's confirmation or re-scheduling.

The defendant must be given a minimum of 90 days' notice before the date of the hearing indicated by the claimant. The notice period is 150 days if service is to be made outside Italy.

Whenever a credit is supported by written evidence (such as invoices) and certain in its amount, the creditor can apply for a summary payment injunction (decreto ingiuntivo) instead of using the ordinary and time-consuming court proceeding. By the decreto ingiuntivo the court orders the debtor to pay the outstanding amount before the debtor is involved. The injunction is served on the debtor, which has up to 40 days to challenge it before the same court that issued the order. If opposition is made, ordinary proceedings on the merits ensue. However, if unchallenged, the injunction becomes final and binding on the debtor.

Precautionary proceedings commence, as a rule, with an application addressed to the court.

Notice to the defendant and defence

Notice of judicial deeds can be processed either by resorting to a bailiff, whose competence is limited to a specific territorial area, or by sending the document on the addressee's certified e-mail from a lawyer's certified e-mail.

Subsequent stages

The writ of summons must be filed with the court's clerk within ten days after its service on the other party. If the defendant disputes the claim, it enters an appearance in the proceedings by filing a statement of defence in court, normally 20 days before the first hearing (indicated by the claimant and confirmed/or re-scheduled by the judge). This must include any possible counterclaim or any possible request to involve a third party in the proceedings.

At the first hearing the parties are normally granted:

  • A 30-day deadline to amend and/or clarify their respective statements of the relief sought.

  • A further 30-day deadline to file in court any supporting evidence and/or to apply for the evidence to be gathered in support to their respective claims.

  • A further 20-day deadline to rebut their respective previous evidentiary briefs.

At the first hearing, the judge normally also schedules a second hearing for the parties to discuss on the evidentiary briefs submitted and for the judge to decide whether to proceed with any evidence-gathering activities, rather than considering the case ready to be decided.

Once the evidence has been heard, or if the judge considers the case ready to be decided without further evidence gathering, the judge invites the parties to argue the case, which is generally (except before the Supreme Court of Cassation) only by way of written submissions.

The case is then decided by the judge. There is no mandatory deadline for the judge to issue a decision and, depending on the complexity of the case, it may take months for the judgment to be issued after the parties' final submissions.

Italy is experiencing a widespread reduction of the courts' backlog and of the duration of ordinary civil proceedings, which are normally decided between 18 months and three years from the service of the writ of summons.

 

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what grounds must such a claim be brought? What is the applicable procedure?

Italian procedural laws do not provide for any specific proceedings to immediately strike out a case. However, proceedings may be expedited and the case may be decided immediately whenever it is clear that:

  • The court does not have jurisdiction or territorial competence.

  • The claimant does not have the right or standing to bring the claim.

  • The claim has not been put forward correctly (for example, the claim is not signed by a lawyer or the lawyer has not been granted a valid power of attorney).

 
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?

Alongside any interim measures, the court can order a security to be given by the applicant to cover potential damages arising out of the enforcement of the measures granted.

 
12. What are the rules concerning interim injunctions granted before a full trial?

Parties can apply to tribunals to obtain interim injunctions either before or while proceedings on the merits are pending.

Interim measures, whenever requested before the start of the proceedings, are devolved to the court that would be competent in the main proceeding. If Italian courts do not have jurisdiction, the interim measure should be requested from the court where the measure is to be enforced within Italy. If ordinary courts are not competent because the parties have agreed to arbitration, relief should be sought from the court which would be competent in the absence of the agreement to arbitrate.

Availability and grounds

Different kinds of interim measures are available under Italian laws, such as:

  • Interim attachment orders to preserve assets.

  • Imposing specific performance or non-performances.

  • Requiring consent to pre-trial technical investigations.

For relief to be granted, the applicant must satisfy the judge that its claim stands prima facie on brief investigation and summary evidence (fumus boni iuris) and that the prejudice that the applicant would suffer in the absence of such relief would be severe and irreparable (periculum in mora).

Prior notice/same-day

Where service of the application to the adverse party entails delays that may further jeopardise the right for which the relief is sought, a precautionary measure is commonly issued without the other party being heard in advance (inaudita altera parte). It is even possible, although quite rare, to obtain the measure the same day the application is filed in court.

If the injunction is granted without the other party being heard, the judge calls the parties to the first hearing to discuss the case and to confirm or set aside the injunction. The court order issued is served on the defendant, along with a copy of the application and of the order summoning the parties to the first hearing.

If the measure is granted with the other party being heard, the judge schedules the first hearing for the parties to discuss the case and the order is served on the defendant, along with copy of the application. The decision is normally taken a few days after the first hearing.

Mandatory injunctions

Interim injunctions to compel specific performance are in principle available, as are restraining orders.

Rights of appeal

Interim orders are subject to the scrutiny of a panel of three judges within the same tribunal which issued them. The second instance decision is final and binding and cannot be appealed to the Supreme Court of Cassation.

 
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

Availability and grounds

Interim attachment orders are available to secure the:

  • Debtor's assets while proceedings are pending (sequestro conservativo). This may be granted if the claim is, on the face of it, likely to stand scrutiny and whenever it is likely that the applicant would suffer a material and irreparable prejudice while waiting for the proceedings on the merits to be completed. It is not uncommon for the sequestro conservativo to be granted when the debtor is in financial distress or is sited outside the EU and recovery may therefore prove difficult.

  • Assets whose properties are disputed between the parties (sequestro giudiziario).

  • Evidence on which a party rely on to support its claims and which are not in its possession (sequestro giudiziario (probatorio)).

Under the sequestro giudiziario and the sequestro giudiziario (probatorio), the assets/evidence concerned are secured by a custodian while the proceedings on the merits are pending.

Prior notice/same-day

Interim attachment orders can be requested without the other party being heard but this is unusual.

Main proceedings

Interim attachments aim to secure the effects of main proceedings that are already pending or are in the verge of being instigated, in Italy as well as abroad.

Whenever the main proceedings are pending or to be instigated abroad, the interim measure should be requested before the Italian court where the measure itself is to be enforced.

If the interim attachment is granted before the start of the main proceedings, the applicant must begin such proceedings within the following 60 days.

Preferential right or lien

An interim attachment on debtors' assets creates a preferred right, which makes any subsequent transfer of the assets concerned ineffective towards the creditor.

Damages as a result

An applicant is liable for possible damages suffered by the (alleged) debtor if its claims prove to be groundless.

Security

The applicant may be asked to provide a security (see Question 11).

 
14. Are any other interim remedies commonly available and obtained?

Italian laws provide for other interim remedies which might be helpful to parties to large commercial disputes.

Parties with reason to believe their rights may be threatened by imminent and irreparable harm before ordinary proceedings are complete can apply with the court to issue an order to protect those rights. This application (known as ricorso ex articolo 700 c.p.c,) is often used, for example, to either:

  • Block the payment of first demand guarantees issued by Italian banks.

  • Refrain competitors from acting unfairly.

A party with an urgent need to assess the conditions of places and/or of goods before proceedings are instigated can seek an order for the assessment, to be delegated to an independent technician appointed by the court (accertamento tecnico preventivo).

If a party has reason to fear that one or more key witnesses may not be available to testify in the future due to serious illness it can apply for the witnesses to be immediately heard for future reference.

If party has reason to believe that changes to real estate (such as a new building) may cause damages to its own properties, it can apply for an order for the new works to be suspended.

 

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can they also be punitive?

In case of breach of contract, the aggrieved party can apply to the courts to seek a judgment:

  • Ordering the non-fulfilling party to fulfil its obligations under the agreement.

  • In the alternative, acknowledging that the agreement has been terminated due to the non-fulfilling party's default.

  • In any case, ordering the non-fulfilling party to compensate the aggrieved party for the damages suffered as a consequence of the breach.

Damages arising out of a breach of contract consists of actual losses as well as loss of profit or loss of reputation. If the damages suffered cannot be proved in their exact amounts, they may be quantified on an equitable basis by the judge.

Punitive damages are not allowed, as they are considered against public policy.

 

Evidence

Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

There is no general duty to disclose documents to the adverse party. A party can apply for a specific document to be disclosed by the adverse party, provided it is established that:

  • Such a document exists.

  • It is in the possession of the other party.

  • It is relevant to the matter at issue.

 

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

Correspondence between lawyers marked "confidential" or "counsel-to-counsel", or communication concerning out-of-court settlement discussions cannot be disclosed in court.

Other non-disclosure situations

Attorney-client privilege applies in civil and criminal proceedings to cover any piece of information and/or documents made available by clients to lawyers (and the other way around).

 

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

Witnesses are heard only on obtaining permission by the court. Witnesses are requested to confirm or deny matters that are submitted to them through detailed questions. There is no "story-telling" method envisaged under Italian law. The judge must assess the relevance/admissibility of the questions that the parties wish to submit. The questions are therefore presented to the judge in advance and are to be written exactly as they are to be put to the witnesses. The judge has no right to amend and/or supplement the questions as drafted by counsel and only decides whether to grant authorisation to them to be submitted to witnesses, providing reasons in case of refusal. It is very common for only some questions and/or some witnesses to be allowed.

Parties are not admitted to be heard as witnesses, as they have a clear interest in the outcome of the proceedings that makes their accounts of facts by default unreliable.

Witnesses are normally heard in court by the judge in the presence of the parties' lawyers. On the agreement of all the parties involved, witnesses may be allowed to testify by answering the queries admitted by the judge in writing.

Right to cross-examine

Only the judge can submit the questions to witnesses. Counsels are not authorised to examine or cross-examine witnesses. The idea is that counsels cannot interact with witnesses in order to preserve the genuineness of their testimony. Therefore, witness coaching is not permitted under Italian law or under the lawyers' code of conduct.

 

Third party experts

19. What are the rules in relation to third party experts?

Experts are not considered to be witnesses but rather as professionals that advise the judge on specific technical issues.

The judge can appoint an expert at any time (and irrespective of any application by the parties) for guidance on technical issues. Each party can appoint its own expert.

Appointment procedure

Parties can file an expert report in court along with any other supporting documents before any appointment by the judge of an independent expert. Parties can also ask the judge to appoint an independent expert. Once an independent expert is appointed by the judge, each party may additionally appoint their own experts. After hearing the parties' experts, the court-appointed expert files its report. The judge may call the expert to clarify its report and/or to deal with any possible issues raised.

Role of experts

Party-appointed experts are independent professionals but normally support their clients' arguments.

The court-appointed expert's role is to support the judge's decision as far as technical issues are concerned. The expert must be independent from the parties and may be replaced if not.

Right of reply

There is no right to cross-examine the court-appointed expert. The court-appointed expert hears the party-appointed experts and sends them the draft of his report before finalising it. The party-appointed experts are given the opportunity to be heard by the court-appointed expert by filing written comments on the draft of the report. Once the report is filed, parties may further comment on the document and the judge may call on the expert to provide clarifications.

Fees

The fees of the court-appointed expert are normally paid by the party who asked the judge for the appointment.

 

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

Parties can appeal against the first instance decision before the Court of Appeals.

Second instance proceedings are, in principle, aimed at reviewing the case on the merits, and the first instance judge's findings of facts and laws. In very limited circumstances, the evidence gathering activities performed in the first instance proceedings may be supplemented in the second proceedings.

Grounds for appeal

Italian procedural laws do not limit the grounds for a party to appeal against a first instance decision. However, the appeal is immediately discharged if, under a brief investigation, has no serious prospect of success.

Time limit

An appeal must be lodged within 30 days from the service of the first instance judgment or, if the judgment is not served, within six months from when the decision is made available to the parties by filing it with the court's clerk.

 

Class actions

21. Are there any mechanisms available for collective redress or class actions?

The "class action" mechanism is a relatively new feature of the Italian legal system. Class actions are available only to consumers or consumers' associations for the protection of consumers' rights under the Italian Consumer Code.

 

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?

The general principle is that the losing party must reimburse the other party for legal costs and fees. However, courts often depart from that principle to order the losing party to reimburse only a portion of the other party's legal fees.

It is up to the discretion of the judge to rule on the fees to be reimbursed to the winning party and, in doing so, judges take into consideration:

  • The complexity of the case (which might suggest that the losing party should reimburse only a portion of the other party's legal costs).

  • The parties' overall approach to the case and behaviour during the proceedings. Gross negligence in instigating a groundless legal action, as well as misconduct during the proceedings, may move the judge to order the losing party to take responsibility for the entirely of the other party's fees.

Costs include:

  • Court's and lawyers' fees.

  • Out-of-pocket disbursements.

  • General overheads (15% of the lawyers' fees).

  • Lawyers' social contributions (4% of the lawyers' fees).

 
23. Is interest awarded on costs? If yes, how is it calculated?

Interests run on legal costs, at the rate set by the Ministry of the Economy. The rate for 2015 is set at 0.5% per year.

 

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?

Before enforcing a local judgment over the debtor's assets, the creditor must serve on the debtor a formal request to pay the amount due in ten days.

If the debtor fails to process payment by the given deadline, the creditor can start enforcement by:

  • Seizing the debtor's assets (movable as well as real estate assets), which are then auctioned in a proceedings surveyed by a judge.

  • Freezing the debtor's funds owned by a third party and redirecting them to the creditor.

 

Cross-border litigation

25. Do local courts respect the choice of governing law in a contract? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

Parties can choose the law applicable to the whole or to a part of the agreement and the Italian courts will respect this choice.

However, in some specific circumstances Italian mandatory laws can apply in any case, for instance where the agreement concerned involves consumers or labour matters, as well as art and cultural heritage.

 
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?

Parties can choose a court to have exclusive jurisdiction with respect to any dispute which may arise out or in connection with an agreement, provided that:

  • Such choice of jurisdiction is agreed on in writing (or complies with any specific form which is customary for the parties involved or that is well known in commercial practice).

  • It concerns the parties' waivable rights.

However, choice-of-jurisdiction clauses which could affect the rights of Italian-domiciled insured beneficiaries, consumers or employees may not be considered effective by Italian courts.

In addition, Italian courts always have exclusive jurisdiction with respect to disputes concerning property rights relating to real estate sited in Italy or the validity of Italian corporate bodies' decisions.

 
27. If a foreign party obtains permission from its local courts to serve proceedings on a party in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your jurisdiction party to any international agreements affecting this process?

Regulation (EC) 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (Service of Documents Regulation) and the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention) apply to service in Italy of judicial and extrajudicial documents in civil or commercial matters issued, respectively, inside or outside the EU.

The Service of Documents Regulation and the Hague Service Convention require the central authority designated abroad to send the document to be served in Italy to the Italian central authority, along with its Italian translation and the duly filled in model form for the regulation or convention.

The Italian central authority executes the request for service according to Italian procedural laws, that is by entrusting a bailiff to proceed with the service to the recipient of a hard copy of the document concerned.

Under Italian private international law, service of judicial documents issued abroad can be processed entirely in Italy. The documents to be served, along with their translations in Italian, can be sent directly to an Italian lawyer who, subject to the authorisation of the Public Prosecutor for the area in which the service is to be made, entrusts the bailiff to proceed with service to the recipient.

 
28. What is the procedure to take evidence from a witness in your jurisdiction for use in proceedings in another jurisdiction? Is your jurisdiction party to an international convention on this issue?

Regulation (EC) 1206/2001 on co-operation between the courts of the member states in the taking of evidence in civil or commercial matters (Evidence Regulation) and the HCCH Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 (Hague Evidence Convention) apply to the requests to take in Italy evidence intended for use in civil-commercial judicial proceedings inside or outside the EU.

The Hague Evidence Convention provides for the central authority of the state where the civil/commercial proceedings are pending/or are being instigated to send to the central authority of the state where the evidence is to be taken a "letter of request" (rogatoria), detailing the evidence to be taken.

Italy has expressly denied the availability of "pre-trial discovery". Evidence that is not enshrined under Italian procedural laws may be taken insofar as it and the methods by which it is gathered are compatible with the Italian procedural principles.

The central authority must then instruct a court to proceed with the requested evidence-gathering activities. The judges of the requesting court can take part in the evidence-taking activities, subject to the specific authorisation of the competent Court of Appeal.

The Evidence Regulation, which prevails over the Hague Evidence Convention between EU member states, provides for a few far-reaching, improvements:

  • The judge of the requesting state can directly liaise with the Italian judge where the evidence is sought.

  • The requesting court can gather the evidence sought directly in Italy (subject to the involvement of the Italian central authority).

 

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?

A foreign court decision issued in a non-EU member state with which Italy has not entered into any specific bilateral convention (for example, with the US) is automatically recognised in Italy if it is final (not subject to any further judicial scrutiny) and its recognition is not challenged.

If the decision is challenged, the Court of Appeal where the decision is to be enforced can double-check the following statutory requirements for the decision to be recognised/enforced in Italy:

  • That the foreign court had jurisdiction under the Italian rules on jurisdiction.

  • That the instrument whereby the proceedings were commenced was duly served on the respondent and that the "due process" paramount principle was complied with.

  • That the respondent was given the opportunity to be heard.

  • That the decision is final and it does not conflict with any Italian final judgment.

  • That court proceedings instigated before the proceedings abroad are not pending on the same cause of action and between the same parties.

  • That the decision does not infringe Italian public policy (for example, punitive damages are considered against public policy).

On 10 January 2015, Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters entered into force, marking a significant change to the EU regime. The previous exequatur procedure has been abolished and a decision now given in one EU member state is enforceable in Italy whenever enforceable in the member state of origin, without the need for any special procedure/declaration of enforceability.

It is sufficient for the person against whom enforcement is sought to be served with a copy of the decision accompanied by the certification issued by the member state of origin (a model of which is provided in the Regulation) certifying that the decision is enforceable, prior to the first enforcement measure.

The person against whom enforcement is sought may seek refusal of the enforcement of the decision whenever one or more of the grounds for the refusal listed in the Regulations are met, such as:

  • That the decision is contrary to Italian public order.

  • That the person against whom the enforcement is sought has not been given the opportunity to be heard.

  • That the decision conflicts with a previous decision issued between the same parties in Italy.

  • That the decision conflicts with a decision rendered in another EU or non-EU member state and such decision is eligible to be recognised in Italy.

  • That the court which issued the decision did not have jurisdiction.

 

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Is ADR used more in certain industries? What proportion of large commercial disputes is settled through ADR?

From 2010, with a view to reducing the courts' backlog and speed up civil in-court proceedings, parties are requested to enter into mediation, which is mandatory with respect to certain specific matters including:

  • Condominiums.

  • Property rights.

  • Division of a joint property.

  • Inheritance matters.

  • Lease matters.

  • Agreements whereby owners of a company or of a going concern transfers the shares or the business to a member of their family.

  • Medical malpractice.

  • Insurance, financial and bank contracts.

In other matters (such as commercial disputes), mediation is available but is not mandatory.

Mediation never prevents a party from starting interim proceedings.

While facultative mediation is struggling to be brought up to speed in Italy, arbitration is becoming more and more popular and is often used to settle large commercial disputes, where the higher costs (compared with court proceedings) are not so prohibitive and parties rather appreciate neutrality, confidentiality and speed, which are three of the main features of commercial arbitration.

Arbitration proceedings may either be:

  • Institutional, where the parties submit their disputes to an arbitration to be conducted under the auspices of an arbitration chamber, which often assists with the running of the case and sets procedural rules that are followed by the arbitrators in dealing with the case.

  • Ad hoc, where proceedings are not administrated by others and the parties make their own arrangements for selection of arbitrators and with respect to the procedural rules to apply to the procedure.

 
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can courts compel the use of ADR?

The only compulsory form of ADR is mediation in certain disputes (see Question 30). Courts cannot compel mediation otherwise, and cannot compel arbitration, which requires contractual consent between the parties.

 
32. How is evidence given in ADR? Can documents produced or admissions made during (or for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR confidential?

Under Italian procedural laws, parties can set the procedural rules for the arbitrators.

Failing such a choice, the arbitrators steer the evidence gathering stage, enjoying the widest discretion within the limit of the adversarial principle, which must be guaranteed throughout proceedings.

Italian procedural laws specify that:

  • Only witness testimony (also by way of a witness statement) is admitted in arbitration.

  • Arbitrators can appoint experts on technical issues.

  • Arbitrators can ask administrative authorities to provide information required to decide the case.

No other specific provisions dealing with the taking of evidence in arbitration are enshrined under Italian laws.

 
33. How are costs dealt with in ADR?

In broad terms, arbitration proceedings in Italy are more expensive than court proceedings. First instance ordinary courts' fees may amount to a maximum of about EUR1,700 and include court costs and judge's "fees". Arbitrators' fees are added to the arbitration chambers' fees (in case of institutional arbitration), are not capped and increase with the value of the case.

Mediation costs are lower and depend on the value at stake in the dispute. They are normally set by the mediation institution.

 
34. What are the main bodies that offer ADR services in your jurisdiction?

Arbitration and mediation services are normally provided by the Chambers of Commerce, which are widely spread over the territory. The most active and reputed arbitration chamber/mediation institution in Italy is the Milan Chamber of Arbitration (CAM).

 

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come into force?

The most recent reform is six months' old and no other noteworthy reforms are likely to come into force in the next few months.

 

Contributor profiles

Davide Rossetti, Avvocato

DLA Piper Italy

T +39 02 80 618 1
F +39 02 80 618 201
E davide.rossetti@dlapiper.com
W www.dlapiper.com

Professional qualifications. Law degree at the University of Milan; Post graduate degree in Commercial Arbitration at the Queen Mary University, London; Admitted to practice in Italy.

Areas of practice. Commercial litigation and arbitration.

Recent transactions

  • Assisted a top-tier steel company in a multimillion pre-contractual liability claim brought before the court of Milan and the Milan Court of Appeals.
  • Assisted a German investment fund in a set of disputes, in court and arbitration related to a large real estate complex in Rome.
  • Acting in a set of LCIA arbitration proceedings for a casualwear large company with respect to a set of disputes arising out of a business purchase agreement and related contracts.
  • Acting for a well-known haute couture Italian fashion company in various in-court and arbitration proceedings related to supply agreements with retailers.
  • Acting for a German bank in various precautionary proceedings related to international first-demand autonomous guarantees.
  • Assisting a large Italian superstore in CAM arbitration proceedings for the alleged breach of a long-term service agreement with one of its suppliers.
  • Acting as CAM appointed sole arbitrator in various arbitration proceedings related to corporate directors' mismanagement.

Languages. Italian and English.

Publications. Rethinking Class Arbitration in light of American Express v. Italian Colors U.S. Supreme court's decision (Corte Suprema degli Stati

Uniti, 20 giugno 2013 n. 12-133)" in Rivista del Commercio Internazionale, 1/2015, p. 328.


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