New legislative measures which are aimed at speeding up the judicial process are having a dramatic effect on the judicial system in Italy. As a result, court proceedings are now a more effective and convenient method of resolving disputes than in the past. The principal innovative change is that claimants are now able to ask for a wider range of remedies than were available previously, with the remedies being specifically tailored to the degree of protection required.
A reform of the entire civil procedure system is currently being discussed and the proposed changes should further strengthen the results already achieved. It is envisaged that summary proceedings will increase and ADR will be encouraged, which in turn should dramatically reduce delays in the Italian courts.
2. Emergency Relief
In Italy emergency relief is available through interlocutory and pre-trial proceedings (procedimenti cautelari). The principal form of emergency relief are injunctions which either require a party to do, or to refrain from doing, some act either pre-action or during the litigation. An injunction can be obtained through a petition to the court (ricorso). To obtain an interlocutory injunction the claimant has to persuade the court that:
(a) in all likelihood it has a valid right which will be or is being infringed by the defendant (fumus boni iuris); and
(b) it has not delayed in seeking the relief; and
(c) the matter is urgent because there is a danger of irreparable damage from the defendant’s wrongful activity (periculum in mora).
Courts have a wide discretion as to the type of injunctions that can be ordered. They include orders for the seizure and preservation of assets as well as preventative injunctions, requiring a party to refrain immediately from acting in a certain way. In IP matters, there are specific injunctions available to protect against infringements of patent rights and copyright. A party has a right of appeal against any interlocutory order made against it (reclamo).
Remedies for interlocutory relief can usually be obtained within one to four months from the filing of the action. In appropriate cases injunctions can also be obtained ex parte, that is without the defendant being heard (inaudita altera parte). In such cases the decision of the court will be even quicker.
Some interlocutory measures are followed by proceedings on the merits which generally last about two to three years. At the end of the proceeding on the merits the court will confirm, revoke or modify the interlocutory order. It is possible to obtain an interlocutory injunction without incurring significant costs.
In general, the Italian court structure and procedural rules provide for fast and cost-effective proceedings with specialised judges in various fields of law. For example, employment disputes have their own procedural rules which enable disputes to be heard quickly by specialist judges. In addition, all IP matters are now assigned to special IP courts, which normally resolve disputes in a reasonable amount of time.
The main courts of first instance are called the Tribunali and appeals from the Tribunali are referred to the District Court of Appeal for the particular Region. Cases are allocated to the Tribunali depending on the value (low value cases are allocated to Giudici di Pace (Justice of the Peace) and subject matter of the dispute as well as on the location of the parties to the dispute.
In Italy, the only ‘interim measures’ available to parties prior to the trial of a matter are those referred to at the Emergency Relief section above.
All decisions of the Tribunali can be appealed to the Court of Appeal. Whilst the Court of Appeal can hear appeals both on the law and the facts the filing of new evidence is rarely permitted. Parties can choose to appeal against the entirety of a decision or alternatively to limit their appeal to particular aspects.
Parties are not compelled to disclose to each other documents relevant to the dispute in their possession. Indeed, parties usually refrain from disclosing documents or information that could adversely affect their own case. That said, the new Corporate Procedure Law (which governs disputes involving corporate entities as well as IP matters) encourages the voluntary disclosure of documents by parties to a dispute.
Generally, communications between lawyers and clients are strictly confidential and their disclosure cannot be compelled by the court. Confidential correspondence between the parties’ lawyers and letters containing transaction offers generally cannot be shown to the court or mentioned during trial.
6. Enforcement of Judgments
Final court judgments, including (save in exceptional cases) judgments of the courts of first instance, can be enforced through enforcement proceedings. In general terms there are three types of enforcement proceedings:
- enforcement of an obligation to pay a sum of money;
- specific enforcement of an obligation to deliver movable or immovable goods;
- enforcement of an obligation to perform (or not to perform) a specific act.
Enforcement of a judgment is obtained through a specific procedure, processo d’esecuzione, which has its own set of rules but is connected with the proceedings leading to judgment.
The Italian system also provides for certain summary orders to be enforceable as if they were final judgments. In addition, a settlement (conciliazione) concluded in the course of a civil action and recorded in the minutes of the proceedings (processo verbale) is enforceable as a judgment.
In addition to the reciprocal arrangements which exist between Italy and other EU countries with regard to the enforcement of judgments, Italy is also a party to reciprocal arrangements with certain other jurisdictions around the world which allow for registration and enforcement of an Italian judgment in those jurisdictions.
Court fees depend upon the value of the claim and/or the number of defendants against whom the action is brought. Court fees, including the use of bailiffs (bailiffs costs are very low in Italy) and lawyers’ fees can generally be recovered by the successful party from the unsuccessful party at the end of the trial. In general, the costs for litigation in Italy are lower than in the UK, Germany and France.
International and national arbitration proceedings are increasingly used in Italy, because of their speed and relatively low costs. Arbitration is considered to be the main form of ADR in the Italian system and is encouraged under the recent changes to the Corporate Procedural Law.