Last verified on Wednesday 5th July 2017
Italy is a civil law country and the courts are not bound by the decision of other courts, even if superior. Anyway, the case law has a relevant importance in the decisions rendered and usually the outcome of a case can be foreseen both analysing the law and the case law of the Court of Cassation. Courts are independent from other branches of power (article 104 of the Italian Constitution). The judges are selected with a public exam and not elected (article 106 of the Italian Constitution). The court system for civil litigation provides for three different instances of jurisdiction. The first instance is represented by the Civil Tribunal (or the Justice of the Peace for dispute of a value lower than €5,000). In each tribunal some specific sections are provided for specific matters (bankruptcy, IP rights, labour law, some disputes related to companies and commercial issues). The second instance is before the Court of Appeal that shall re-examine the facts and the law of the case (the Tribunal has the role to decide about an appeal made against a decision rendered by the Justice of the Peace). Then, an option in order to access a third instance before the Court of Cassation that shall only re-examine the law applied to the dispute in the limited cases provided by article 360 of the Code of Civil Procedure. The Court of Cassation is in Rome and is competent for all the country. Juries are limited to some specific cases in criminal law.
All graduated in law can become lawyers after passing a public exam. The bar is fused, even if there is a particular register for lawyers entitled to practise before the Court of Cassation. Foreign lawyers cannot generally practise before the court. Only lawyers from the European Union can practise in Italy on permanent basis. Even if there is no specialised bar, the current trend is for lawyers specialising more and more in specific practices.
The main issue in litigation in Italy is linked to the duration of the proceedings. Specific reforms have been implemented in recent years in order to reduce the workload in providing for mandatory ADR, augmenting the courts’ costs to discourage frivolous disputes, reduce the possibility to appeal the decisions, and try to make the court system more efficient. The process is still in progress and new reforms are expected in the coming years.
The parties are free to agree on a specific forum (according to article 28 of the Code of Civil Procedure), except in some particular cases (eg, bankruptcy, real estate, family law, consumer, inheritance). If the parties have not agreed on a specific forum, then the Code of Civil Procedure states the competent court having regard to different criteria related to territory, value and specific matters. A foreign party can be summoned in Italy according to EU Regulations (for example, No. 1215/12), international treaties where applicable and according to article 3 of the Law 218/95; as a general remark, a foreign party can be summoned in Italy if he or she is resident or domiciled in Italy or if the disputed obligation has a strong connection with Italy.
Usually, Italy does not attract disputes before the public courts. A good standing of dispute resolution is appreciated in arbitration courts (Milan, Rome, Venice) and Italy’s arbitration is becoming more attractive considering also the key position of Italy among Europe, Africa and Middle East.
The Italian court will briefly value the competence of the other court and the status of the proceedings. If the court will consider that the dispute pending before another forum is identical to the one pending before itself, having regard to the parties and their claim, then the court will dismiss the case. If the court will consider that the resolution of a dispute pending before another forum should be preliminary to the resolution of the case pending before itself, then the court can suspend the proceedings until a decision by the other forum is rendered.
Deference to arbitration
How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?
Usually, the courts respect the application of arbitration clauses an agreements to arbitrate, after having evaluated the validity of said clause or agreement. In any case the clause or agreement is found valid, the court dismisses the case. The decision of the court about validity is usually reasonable and there are no prejudices of public courts about the possibility to arbitrate a dispute. The courts consider themselves in any case competent for interim proceedings (article 818 of the Code of Civil Procedure).
The Court of Appeal (or, in a few cases, the Tribunal) is competent for reviewing arbitral awards but the review will not reconsider the merits of the case. The only opportunities to challenge an arbitral award are stated by articles 808 and 829 of the Code of Civil Procedure, that provide the possibility for the Court of Appeal to value only if the arbitration clause or agreement is valid, the parties’ right have been granted before the Arbitral Tribunal, the Arbitral Tribunal was competent and properly established and if the award is not contradictory or does not violate the Italian public order. Commonly, the public courts does not dispute the agreement of the parties to arbitrate and the decision of an Arbitral Tribunal and successful appeals of an award are granted only in few cases.
Anti-suit injunctions are not provided by the law in Italy as such as they are typical of common law countries. The courts, in any case, seriously consider any complaint about the lack of jurisdiction due to an agreement of a different forum and usually grant a reasonable decision on the matter. In some cases (article 41 sqq. of the Code of Civil Procedure) the Court of Cassation can be required to render a decision about the jurisdiction or the competence of a court.
Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?
Italian law grants immunity to several entities, including foreign states, state organs, states of federal states, diplomats and consular officers and employees, heads of state and members of foreign governments as well as international organisations and members of their staff, if the disputes are related to actions done for the purpose of exercising sovereign state power or while exercising an official position. Insofar as it concerns the Italian state and other state organs, usually those entities have to be summoned before the administrative courts, while in limited cases ordinary courts have jurisdiction (eg, recovery of damages).
Civil proceedings are usually commenced by serving a petition to the defendant and lodging it at the competent Court Register’s Office. The court can use wide powers to lead the proceedings (asking for a mediation, disposing an expertise, arguing about the witnesses requested by the parties) but usually respect the principle that each party should be responsible of proving the facts basing the respective arguments. So, the role of the court is usually limited to assure the contradictory between the parties and to reasonably further the proceedings, according to article 175 of the Code of Civil Procedure that permits the judge to use any power for the development of the proceedings. The court’s decision should be limited to the claims made by the parties and an excess of jurisdiction is prohibited (article 112 of the Code of Civil Procedure). The court can in any case render decision ex officio (for example, in the case of lack of jurisdiction, nullity of a contract, fulfilment of a contract).
Article 163 of the Code of Civil Procedure states the requirements for filing a claim (ie, the indication of the competent Tribunal, of the parties of the dispute, the name of the lawyer representing the party, the request to the defendant to appear before the court during an hearing as requested by the plaintiff, the facts of the case, the applicable law and the statement of the relief sought). The pleading is usually very detailed even if all the evidence can also be produced or requested later in the proceedings. Another option for the plaintiff is to file a request before the court for a summary judgment as stated in article 702-bis of the Code of Civil Procedure. In such a case of summary judgment, the plaintiff alleges that the dispute can be decided on the base of the evidence supplied to the court together with the pleading, without further discovery. In this case, during the first hearing the judge will decide if to allow the request of the plaintiff or, if he deems that the controversy needs a further taking of evidence, the judge can convert the summary proceedings into an ordinary proceedings. An interested party, without requesting either ordinary or summary proceedings, can also ask for an injunction (according to article 633 of the Code of Civil Procedure) to pay a debt or release a good. The injunction, if opposed by the defendant in 40 days, is followed by ordinary proceedings and, if not opposed, constitutes a definite decision that can be enforced.
Article 167 of the Code of Civil Procedure states the requirement for answering claims, which are similar to the requirements for the plea made by the plaintiff. The defendant can dispute the competence of the court and rise several preliminary objections (eg, pendency of other proceedings, statute of limitation, etc) and has also the chance to freely counterclaim. In case of summary proceedings, according to article 702-bis the defendant can also ask for the prosecution of the case by the means of ordinary proceedings.
After the first hearing is held, the parties are usually allowed to file three new statements as provided by article 183 of the Code of Civil Procedure. As far as it concerns the claims already sought, the parties have the chance only to precise and rectify the claims (but the plaintiff can formulate new claims if linked to a counterclaim made by the defendant). After the initial pleadings are formulated, the parties cannot significantly change their claims. As per the discovery, in the new statements provided by article 183 of the Code of Civil Procedure, the parties are allowed to present documents and evidence and ask for witness evidence or for the appointment of an expert by the court. The parties can also ask for inspections, for taking an oath, and can ask the court to order the other party to disclose documents.
Civil hearings in Italy are generally not public, except for some cases of hearings in open court held by a college of judges, if the judges do not ask for a hearing in camera. All the decisions rendered in courts are public. The parties should be anonymised in judgments for privacy reasons.
The courts render interim assessment in few cases (for example, decisions on the competence and jurisdiction, decisions on not contested claims), which usually also establish the possibility to continue the proceedings or not. The courts can summon at any point during the proceedings the parties to appear before the court in order to try to settle the dispute.
According to Law 28/2010 and Law 162/2014, mandatory pretrial conciliation attempts are established in Italy. In particular, Law 28/2010 establishes mandatory mediation proceedings in some particular cases (for example, medical liability, inheritance, real estate). Law 162/2014 establishes mandatory negotiation between the parties and their counsel without a mediator; the negotiation is mandatory for any claim of a value lower than €50,000. If an ordinary proceedings has been commenced without the pretrial attempt having taken place, the judge has to suspend the proceedings. It is always possible to ask for an injunction according to article 633 of the Code of Civil procedure even if the pretrial conciliation attempt has not taken place, and the said conciliation will take place only if the injunction will be opposed by the interested party. Also the expert appointed in the proceedings has a potential role to invite the parties to settle the case. In any case during the proceedings a judge can schedule a hearing aimed at attempting to reach a settlement between the parties.
Pursuant to the Code of Civil Procedure, the interested party can request the court to grant any emergency or interim relief aimed at hasting the effect of the future decision or preserving the existing situation. The relief can be granted both before or during the trial. The reliefs can include, for example, judicial or conservative seizures, precautionary taking of evidence, any kind of injunction. While the relief is provided by article 669-bis sqq of the Code of Civil Procedure, if a party is interested in a particular relief not expressly provided by the said Code, according to article 700 any court can adopt any measure it considers appropriate if aimed at the scope stated above. The interim relief can be appealed (usually within 15 days). Usually the interim relief have to be confirmed in introducing ordinary proceedings within a mandatory time limit (not exceeding 60 days, according to article 669-octies of the Code of Civil Procedure) but the interim relief can in some case become definitive even without introducing an ordinary proceeding.
In order to obtain an interim relief, the interested party shall file a petition explaining the grounds of the request made and asking for a specific measure to be ordered to another party. The interested party shall prove the existence of two different requirements, the:
The courts can render decrees, orders and sentences according to the type of proceedings and the content of the decisions to be rendered.
A court can render a decision in any time it considers that the case can be decided. According to the ordinary proceedings as stated by the Code of Civil Procedure, the decision by the court is rendered within 30 days after the parties have submitted their final brief to the court as set forth by article 190 of the Code of Civil Procedure, summarising the claims made in relation to the outcome of the discovery and, in general, the development of the procedure. Different terms are provided in different cases (decision rendered by a college of judges, labour law, different proceedings for final brief). The terms provided by the Code of Civil Procedure are not mandatory and usually not respected by the judges. Summary judgments can be usually rendered in the summary proceedings as provided by article 702-bis of the Code of Civil Procedure, and in some cases in ordinary proceedings (eg, lack of jurisdiction, not contested claims). No proper motion to dismiss is allowed in Italy.
In any case the court will ascertain that the defaulting party has been properly served and so had the chance to present a pleading before the court, then the court is free to render a default judgment. The defaulting party has in any case the right to be served if the judge dispose his or her testimony or if other parties in the dispute present new claims towards the defaulting party. The defaulting party, once properly served of the introductory pleadings, has to address the court’s clerk in order to obtain information about the development of the case and the rendering of the final decision. The service of the final decision is not mandatory for the interested party and has only the consequence to shorter the term for the defaulting party to appeal (from six to one month).
The duration of the proceedings is a relevant problem in the Italian jurisdiction. Even if some courts are faster than other in rendering the decisions, the average time for the first instance is three years.
Third parties should be mandatory involved at the beginning of the proceedings. The defendant can ask to summon a third party in the statement of defence and so therefore any third party once summoned has the possibility to involve other parties in asking the court with the statement of defence. Each request of involving a third party has to be allowed by the court, that usually grants the right to the applicant. Failing to involve the third party in a proceeding does not preclude the litigant to bring the same or similar claims towards the third party in a different proceeding. If the third party is not involved in the case, then any effect of the decision cannot bound the third party except some very specific cases (for example, in the relation between tenant and subtenant). A third party can intervene in a case according to article 105 of the Code of Civil Procedure if demonstrates an interest in the proceedings for claiming a right or supporting one of the party in the dispute.
Usually the court relies on the parties to request the taking of evidence and to present it. The court has in any case an important role in examining the requests of the parties. While the court has an important power to request motu propriu the taking of other evidence (for example, in requesting witness statements and interrogatory of the parties and in appointing an expert), usually the courts focus on testimony and expertise on the base of the requests made by the parties in the case, in respecting the burden of proof’s principle.
Pursuant to article 2697 of the Civil Code, each party has a duty to prove the facts on which their arguments rely. During the trial, no document disclosure procedure takes place. The judge, upon request by one of the parties, can order a party or a third party (even not in the process) to disclose those documents in their possession that are deemed necessary to be taken during the trial (articles 210 and 213 of the Code of Civil Procedure). If the party in the dispute fails to comply with this obligation, the court may glean evidence from this behaviour in order to render its decision but, due to the fact that the burden of proof is on any interested party, usually no important consequences derive by failing to comply with the obligation.
Witnesses of fact
Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?
Witness evidence is an important evidence in Italy, even if any judge strictly values the reliability of each witness. According to article 2721 of the Civil Code, the witness evidence should be strictly limited, but usually the judges allow the witness evidence for any kind of process and for every value of the dispute. Usually the parties have the duty to expressly state in their statements the questions to be asked to the witnesses and the judge authorises the exact questions to be addressed to the witness that seem relevant for resolving the dispute. Witness preparation is not allowed.
Even if any party can produce an expert statement as an exhibit, usually an expert is disposed by the court during the proceedings, on the request of the parties or on initiative of the judge. The aim of having an expert is to allow the judge to “know the truth” about the facts that the dispute is based on, as is expressly sworn by the expert when accepting the appointment. The judge usually decides on his or her own the expert's exact role in formulating a precise question to be answered by the expert with a final report. The expert has a key role in the proceedings since usually the judge relies on the expert report in the final decision. The expert is appointed by the court, selected from a list of professionals accredited to the court. The parties cannot agree on an expert to be nominated by the court. Each party can nominate a technical consultant to help the expert appointed by the court in his or her evidence and to possibly underline the position of his or her party. The expert has to file a written report that becomes definitive only after having been commented on by the technical consultant of each party. Expert witnesses are requested to orally explain their report at the trial if the court finds it necessary or opportune.
A party cannot be a proper witness in the trial. In case of a legal person, only the person representing the company is prevented from acting as a witness, while other officers and directors, shareholders and employees may do so, and the judge will evaluate their reliability. The judge can summon a party to appear before the court to be freely examined on the facts making up the base of the dispute (“informal examination”). The outcome of the informal examination does not bind upon the judge. Each party can ask the other party to be summoned to answer several proper questions (“formal examination”). The outcome of the formal examination binds upon the judge if the party admits to a circumstance that is in favour of the other party.
The court has a duty to examine foreign law and foreign-language documentation. If the judge cannot understand the contents of the documents submitted to the attention of the court, he or she has a duty to nominate an expert to translate the documents or in any case report to the court about the contents.
According to article 2967 of the Civil Code, each party has a duty to prove the facts on which it bases its arguments. The court shall render a decision only on the basis of the evidences provided by the parties. Uncontested and well-known facts do not need to be proved. The standard of proof in civil litigation is very high. A mitigated standard can apply only on interim relief.
Appealing a decision is generally always possible. Both a summary judgment in the procedure commenced by article 702-bis of the Code of Civil Procedure and an ordinary decision are appealable before the Court of Appeal. The Tribunal is competent for appealing decisions on cases of low value (less than €5,000) that are decided before the Justice of the Peace. After the decision on the appeal has been rendered, there is still a possibility to challenge said decision before the Court of Cassation. The parties always have time limits to appeal (six months or one month if the judgment has been served to the opposing party) and file a petition before the Court of Cassation (six months or two months if the judgment has been served on the opposing party).
Standard of review
What aspects of a lower court's decisions will an appeals court review and by what standards?
As a general rule, in the appeal proceedings only the claims, objections and evidence submitted by the parties before the first instance court can be considered. In the appeal proceedings both the facts and the law are re-examined and the Court of Appeal will confirm or modify the first instance decision. In recent years, new limitations have been provided by the law in order to limit the possibility of appealing a decision. In particular, the Court of Appeal can immediately assess prima facie whether the appeal is grounded or not.
While the Court of Appeal can immediately assess prima facie if the appeal filed by the applicant is grounded or not, and so dismiss the appeal in less than six months, usually a proceedings before the Court of Appeal can last on average three years, even if this term can significantly change from court to court.
Class actions are only available for consumers in specific cases set forth by article 140-bis of the Law 106/2005, known as the Consumer Code. The class action aims at protecting consumers’ rights against a company for misbehaviour, product liability or unfair competition. After the plea is filed, the court has a duty to value the admissibility of the class action and the means to apply for other consumers.
According to article 2392 sqq. of the Civil Code, the directors of a company are liable for the diligent management of the company. A derivative claim to recover loss suffered by the company as a result of a director's negligence, default, breach of duty or breach of trust can be brought by the Assembly (article 2393 of the Civil Code), by each shareholder (article 2393-bis of the Civil Code) representing almost 20 per cent of the share capital (or the difference in percentage provided by the by-laws of the company lower than 33 per cent) and by the company’s creditors (article 2394 of the Civil Code). During a bankruptcy procedure, the trustee of the bankruptcy has a duty to value the opportunity of a derivative action (according to article 2394-bis of the Civil Code and article 146 of the Bankruptcy Law).
The fast-track procedures provided by the Code of Civil Procedure are the summary judgment (article 702-bis) and the injunction (article 633). Another fast-track proceeding is provided by article 696-bis of the Code of Civil Procedure that establishes a particular case of expertise taken before the trial not for reason of urgency but with the purpose of settling the dispute. In this case, the expert appointed can propose a settlement solution to the parties. Even if the parties are not bound upon the proposal of the expert, the said proposal will be highly considered by a judge in following proceeding.
According to article 122 of the Code of Civil Procedure, the proceedings has to be conducted in Italian language and there is no possibility to conduct proceedings in other languages, except for linguistic minorities protected by the Constitution (eg, German minorities in the Alto Adige region). Foreign parties are granted in their right through appointing local lawyers. Where a party or witness requires it, an interpreter has to be used.
A definitive judgment binds only the parties involved in the litigation. A judgment becomes definitive when is not challenged or when is decided by Court of Cassation, except cases of revision set forth by article 395 sqq. of the Code of Civil Procedure (eg, fraud, false evidence, documents found after the decision has become definitive, mistake of fact). Pursuant to article 282 and article 373 of the Code of Civil Procedure, first-instance judgments and second-instance judgments are provisionally enforceable if they provide a precise order of condemnation. The judgments are provisionally enforceable even if they have been challenged before the Court of Appeal or before the Court of Cassation, except when the case said courts decide to suspend the enforceability on the request of the interested party who has to demonstrate the prejudice related to the execution of the decision and the grounds of the request to challenge the decision. If a decision becomes definitive, then the finding of fact and the application of the law are definitive and also bind the same parties in later proceedings (with some limits in criminal proceedings).
In order to begin an enforcement procedure, the interested party shall ask the court that rendered the decision to issue an enforcement order notice (pursuant to article 475 of the Code of Civil Procedure). Once the enforcement order notice has been issued, the order shall be personally served on the other party, jointly or separately from the writ of execution, ordering the losing party to voluntarily comply with the enforcement order. If the debtor fails to voluntarily fulfil his or her obligation, the creditor can begin the execution, within 90 days, via a competent bailiff.
The recognition and enforcement of foreign judgments are regulated by Regulation (EU) 1215/12 and international treaties to which Italy is party (the complete list is available on the website www.esteri.it). Apart from the above-mentioned hypothesis, Law 218/95 applies and provides the possibility to recognise and enforce a foreign judgment if the said judgment has been rendered following certain criteria (it has been issued by a competent jurisdiction; the proceedings respected the right for the defendant to file pleadings, statements and claims; the decision is final and definitive; the decision does not breach Italian public order).
Pursuant to article 91 of the Code of Civil Procedure, the court usually sentences the losing party to reimburse the winning party for the costs and fees incurred. However, especially if the claim is partially upheld or dismissed, the court may determine that each party shall bear, in whole or in part, their own costs for the proceedings.
In certain situations, according to the Law No. 115/2002 a party that proves the lack of sufficient economic resources has the right to obtain free legal assistance both for a plaintiff or a defendant. Usually, before granting legal assistance, the grounds of the request of the application are prima facie evaluated by the competent Bar.
In Italy there are no limitations on agreements on fees, even if based on hourly rates, or flat-fee basis, or based on single stage of performance, or as a percentage of the value of the deal. Meanwhile, what has been much disputed in the past year is whether an agreement according to which the lawyer will get as his or her fees, in whole or in a part, a percentage of the amount recovered for the client in a litigation could be considered null and void.
There is no particular regulation regarding third-party funding in Italy. In any case, a lawyer has a mandatory duty to protect the interest of his or her client and so the third party paying the fees cannot have control over the litigation.
In Italy fee scales for lawyers are provided by Law 55/2014. Currently, there are no upper or lower limits for fees, even if they have been introduced in the past. In any case, the fees granted to the lawyer have to be adequate considering the activity performed and the good name of the profession. An agreement between the parties always supersedes the scales provided by the law.
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