Contributed By Legance - Avvocati Associati
The Italian legal system is ultimately based upon the Roman legal tradition, thus it can be included among the continental civil law systems.
Italian civil courts follow a model which cannot be considered as purely adversarial, nor purely inquisitorial; but rather a mixed one. Indeed, Italian judges do not play a strong, active role in civil proceedings. Parties are free to introduce their claims in the manner, and to the limits, they deem fit – unless public interests are involved, in which case the Public Prosecutor is also allowed to submit a civil claim – and the judge is then bound by these limits. The mixed nature of the procedural model can also be seen in the taking of evidence phase, where, as a general rule, the burden to submit the evidence which is necessary to support their claims lies entirely upon the parties. Unlike in purely civil and commercial matters, in labour law proceedings the rules governing the taking of evidence follow more of an inquisitorial model, where the judge has broader discretion in acquiring evidence on his or her own motion.
According to the Italian civil procedural rules, civil cases are dealt with primarily through the exchange of written submissions and oral discussion during public hearings.
The Italian Constitution provides for an autonomous and independent judiciary, which is formed by ordinary (full-time) judges and honorary judges.
The Italian civil judiciary system is divided into: Courts of First Instance, Courts of Appeal and the Supreme Court.
All civil courts are national courts. Courts of First Instance and Courts of Appeal are located in court districts through the entire Italian territory; the Supreme Court has a sole location in Rome. The jurisdiction of Courts of First Instance is selected on the basis of the Italian civil procedural law criteria for the selection of territorial jurisdiction.
Courts of First Instance are split into small claim courts (giudici di pace) and District Courts (Tribunali).
Honorary judges preside over small claim courts. Their jurisdiction is limited to minor claims over specific matters (eg, claims on real estate boundaries or minor rental and co-habitation disputes) and claims which have a value up to EUR5,000. In the case of claims relating to damage caused by motor vehicles or boats, the maximum claim value is up to EUR20,000. Starting from 2021 these threshold claim values will be increased to EUR30,000 and EUR50,000, respectively.
District Courts are presided over by ordinary judges. All the claims which do not fall within the jurisdiction of lower courts are to be dealt with before District Courts. Depending on the complexity of the matter discussed, judges in District Courts sit either solo or as a panel of three.
Judgments rendered by lower courts are appealed before District Courts. Judgments rendered by District Courts are appealed before the Courts of Appeal. Court of Appeal judgments are appealed, solely under a limited number of procedural grounds, before the Supreme Court.
The Supreme Court (Corte Suprema di Cassazione) is the highest appellate court in Italy. Its main task is to protect the correct and uniform application of the law, thus the focus of Supreme Court review is the lawful application of law.
The establishment of extraordinary or special judges is forbidden by the Italian Constitution. Nevertheless, within the ordinary jurisdictional bodies specialised divisions dealing with specific matters have been established (eg, labour or family law divisions; or enterprises divisions (Tribunali delle Imprese) which were established in 2012 with jurisdiction over certain corporate claims and intellectual property rights).
Administrative Courts – having jurisdiction over claims between citizens and public entities – are split between Administrative Regional Courts (Tribunale Amministrativo Regionale) and the Administrative Appellate Court (Consiglio di Stato).
The Constitutional Court only deals with matters concerning breaches of the Italian Constitution and the compliance of ordinary laws and regulation with the Constitution.
Court filings, judgments and proceedings, in general, are open to the public. The public can therefore apply to have access to documents which are deposited within the court clerk's office.
Court hearings are similarly public as a general rule. Also, when the public disclosure of a judgment can amount to the reparation of damage, the court can order that the judgment is published on websites and/or in newspapers.
Upon a specific interest to preserve confidentiality or secrets, however, parties can request that the court render an order to secure confidentiality and protect proceedings or particular documents from public disclosure.
Rules on data protection and privacy govern the treatment of parties' data enclosed in court filings. Parties are allowed, at any time, to request that the court conceal their names and personal data before the issuance of a judgment.
As a general rule, only attorneys admitted to practice in Italy can represent parties and attend hearings before Italian courts; with the sole exception of small claims courts for claims up to a value of Euro5,000, where parties can attend in person, without the need of attorney representation. Representation before the Supreme Court is reserved to a limited number of authorised senior attorneys.
Also, in application of a European directive, lawyers who are admitted to practice in another EU member state are allowed to appear before Italian courts along with an Italian attorney. In order to do so, the foreign lawyer has to be first registered in the national bar registry as an avvocato stabilito. In order to appear before the Italian Supreme Court, the avvocato stabilito is also requested to prove that he or she has at least 12 years of experience.
There are no specific rules governing third-party funding in Italy. While third-party funding is attracting more and more Italian companies involved in international litigation and arbitration proceedings, it is still debatable whether third-party funding agreements, as conceived of in common law jurisdictions, could be so construed under Italian law and fully enforceable in our jurisdiction.
Not applicable, see 2.1 Third-Party Litigation Funding.
Not applicable, see 2.1 Third-Party Litigation Funding.
Not applicable, see 2.1 Third-Party Litigation Funding.
Not applicable, see 2.1 Third-Party Litigation Funding.
Not applicable, see 2.1 Third-Party Litigation Funding.
Not applicable, see 2.1 Third-Party Litigation Funding.
Italian law imposes mandatory mediation before allowing the initiation of court proceeding in a number of matters:
If the parties fail to comply with the mandatory mediation requirement the judge will defer the hearing to allow them to perform mediation first. Moreover, if a party refuses to take part in the mediation process, without any justification, the judge can take this behaviour into account and infer circumstantial evidence from it. This conduct can also be sanctioned by the judge by ordering the abstaining party to pay a fine equal to the upfront court tax (contributo unificato).
Since 2014, in disputes related to damages arising from motor vehicles or boats, and in all monetary claims for a value up to EUR50,000, the plaintiff has been required to first attempt to settle the claim through assisted negotiation (negoziazione assistita).
In all other matters there is no pre-action conduct required.
The ordinary statute of limitations for civil lawsuits is ten years, starting from the day on which the right can be exercised. The law establishes a shorter statute of limitations for tort claims, which is five years starting from the day on which the unlawful fact occurred.
Shorter statutes of limitations (of one or two years) are also provided by Italian civil law in further specific cases, such as for claims related to insurance agreements, or claims for payment of amounts due in instalments or related to specific contracts.
Under Italian law statutes of limitations are interrupted by the filing of the initial complaint; also, upon the occurrence of certain events, statutes of limitations are stayed for a specific period of time. In the case of an interruption as a consequence of the filing of the initial complaint, the statute of limitations will start to run again upon the issuance of the final judgment.
As a general rule, Italian courts have jurisdiction over individuals and entities who are resident or domiciled in Italy, or when they have a legal representative in Italy with the authority to appear in court. Italian courts' jurisdiction is denied in cases of claims involving immovable assets located outside the Italian territory.
Further to the above, all jurisdiction criteria provided for by the Brussel I recast EU Regulation apply to Italian courts.
Moreover, Italian courts also have jurisdiction if the parties have mutually agreed to submit their lawsuit to the jurisdiction of the Italian courts and in cases where the defendant appears before an Italian court without challenging the relevant jurisdiction.
Legal proceedings before the Italian court are generally commenced by the plaintiff serving upon the defendant a writ of summons (atto di citazione). The main content of the writ of summons is the following:
Once the writ of summons is served upon the defendant (service of process shall not include the documents attached thereto), the plaintiff shall file it with the court and the proceedings are commenced.
The plaintiff cannot amend the initial complaint once filed, but only supplement it within certain boundaries. In particular, the claims raised in the writ of summons cannot be substantially amended, nor supplemented with new claims after the writ of summons; rather, they can only be clarified, or better detailed, within the first defensive brief following the first hearing. Forms of evidence and supporting documents can be supplemented and added to, up to the second written defensive brief the parties are allowed to file after the first hearing. After this time limit expires, the plaintiff has the right to present new evidence only in reply to the counterparty's evidence and it was not available before, provided that the court will ascertain that that justification is grounded.
The same conditions apply, mutatis mutandis, to the defendant; to the objections, arguments and counterclaims raised in the statement of defence; and to the evidence supporting them.
In certain proceedings the initial complaint is slightly different and is made through an application which is first filed with the court, for the court to schedule the first hearing. Once the first hearing is scheduled, the plaintiff will perform service of process upon the defendant with the application and the court order scheduling the first hearing.
The procedure to inform the defendants that they have been sued is to serve them with the initial complaint (writ of summons, see 3.4 Initial Complaint). Generally, service of process is the responsibility of the plaintiff and is performed either by the court's process server officers (upon the plaintiff’s instructions), or by the plaintiff’s lawyer, if authorised to do so.
Service of process within the Italian territory can be performed by hand delivery, delivery via postal service, or delivery via certified electronic mail (solely upon defendants, such as companies, who are provided with a certified electronic mail address). Lawyers can perform service of process only via postal services or certified electronic mail.
Specific rules apply where defendants cannot be located or are located outside the Italian territory.
As far as service of process abroad is concerned, the Italian system follows the rules provided for service of process by the relevant EU regulations or by relevant international conventions (eg, The Hague Conventions of 1954 and of 1965). As a residual means of service of process, service upon a defendant domiciled or resident outside Italy can be carried out through registered letter with acknowledgment of receipt (raccomandata con ricevuta di ritorno) and by delivering a copy of the initial complaint to the Public Prosecutor's office which shall take care of the transmission to the Foreign Office of the defendant's country.
In the event a defendant, duly served with the initial complaint, does not respond to a lawsuit and fails to appear at the first hearing, the court will declare that the defendant is in absentia (contumacia), provided that no irregularity in the service occurred. In the event service of process was not performed properly, the court orders the service of process to be performed again, and schedules a new first hearing. If the defendant fails to appear at the second hearing, then the court will decide the case in absentia.
The defendant is allowed to appear until the final hearing and keeps the right to reply to the plaintiff’s claims. However, the declaration of absentia entails the inability to file counterclaims and to raise objections (both procedural and substantial) which cannot be raised by the court of its own motion. If the defendant appears in the proceedings and proves that it couldn’t have appeared before because of irregularities in the service of process, the defendant will be allowed to produce evidence even beyond the expiration of the evidentiary time limits.
Italy opened up to class actions for the first time in 2009, introducing the option for consumers (ie, individuals who are acting for purposes not related to their business or profession) or end users (consumatori finali) to bring claims through associations or committees (these organisations must be aiming to protect consumers’ and end users’ rights and they are required to be registered in a public list held by the Ministry of Justice) against companies or public organisations. Such actions are permitted in order to obtain a declaration of liability and an order for damage compensation and restitution.
In Italy, consumer class actions are provided on an opt-in basis: consumers who have interests similar to those of the plaintiffs have the right to join the class action within a mandatory deadline (which is, at the most, 120 days from the filing of the initial complaint).
It is important to highlight that, at the time of writing (October 2019), the provisions currently governing consumer class actions will soon be replaced. The provisions providing for the new class action, under Articles 840-bis – 840-sexies of the Italian Civil Code, will enter into force on 19 April 2020.
According to Italian law, lawyers must provide the client with a cost estimate encompassing all the fees and expenses (depending on the complexity of the claim) which can be foreseen at the time of the engagement. If requested to do so by the client, the lawyer shall also provide the above cost estimate in written form, detailing the expected legal fees, litigation expenses and any other costs.
The Italian legal system does not provide for a pre-trial phase per se in the context of a civil lawsuit. However, each party can ask the judge to grant precautionary measures, before the discussion of the merits of the case, whenever the expected duration of the process is likely to prove detrimental to its rights.
In some cases, specifically provided for by the law, some parts of a civil dispute can be decided by means of an early judgment which can be either final or non-final. For instance, according to the Italian civil procedural law, early judgments can be issued on single claims or parts of a claim when they are severable, or a single part of a claim. Early judgment for a general order of payment or liability, leaving the quantification of that payment or liability for a second phase is also possible. Also, Italian courts can issue early judgment for an order of payment regarding unchallenged amounts due, or for injunctive relief in respect of the specific payment of delivery obligations.
Under the Italian Code of Civil Procedure, a party cannot, under any circumstances, apply for the other party’s case to be struck-out before the substantive hearing of the claim has been held.
In the Italian legal system, there are no dispositive motions that are commonly raised before trial.
There are multiple ways for a party, which is not named as plaintiff or defendant in the initial complaint but nevertheless has a material interest in the dispute, to join the lawsuit.
The Italian Code of Civil Procedure provides for three different cases of voluntary joinder of an interested third party in a civil lawsuit:
In all these cases the third-party joinder can be performed until the final hearing.
In addition, a third party can be also summoned to the proceeding by one of the parties (due to a general connection of the position of the third party to the matter in dispute or in light of a warranty relationship), or by the judge.
Applications for security for costs are not expressly provided for by the Italian Code of Civil Procedure.
Please see 4.1 Interim Applications/Motions.
Please see the answer provided in 4.1 Interim Applications/Motions.
Discovery is not provided in Italian civil proceedings. Nevertheless, under Italian law, upon the request of either party to the proceedings, the judge can order each party, or a third party, to produce one or more specific documents (a so called exhibition order), provided that they are identified in detail by the requesting party and that they are relevant to the dispute.
See 5.1 Discovery and Civil Cases.
When ordering the submission of a document from a third party, the judge has to weigh the interests of the proceeding against the rights of the requested third party.
In the event that the requested third party does not comply with the exhibition order, and this is without justification, the judge can charge him or her with a fine (ranging between EUR250-1,500).
No information has been provided for this jurisdiction.
The evidence gathering in Italian civil proceedings is managed differently depending on the forms of evidence in question.
As a general rule, parties are responsible for filing and gathering all forms of evidence that they wish to present to support their case, whereas the judge does not have, in principle, investigatory powers (see 1.1 General Characteristics of Legal System). Nevertheless, the judge retains some discretion in requiring the production of documents from the public administration and to seek clarifications from witnesses and parties’ representatives.
As far as documentary evidence is concerned, documents do not require any particular form in order to be filed with the Court; parties shall only have to file documentary evidence within the time limits provided for evidentiary allegations.
Any other forms of evidence (the hearing of factual witnesses, expert reports, document production, inspection, formal examination of party representatives) shall be authorised by the court before being included in the case file. To do this, the parties shall raise their evidentiary requests within the deadline set forth for this purpose by the Code of Civil Procedure and afterwards, a hearing will be scheduled for the judge to assess and decide upon these evidentiary requests. Afterwards, the judge will also set the procedural calendar for the evidence gathering phase.
Attorney-client legal privilege in Italy is a confidentiality rule that covers all information, correspondence and documents exchanged between a party and its lawyers, to the extent that they are related to the proceedings and the relevant engagement. According to the legal privilege rules, a lawyer is authorised to refuse to comply with a court order – to produce specific documents or to provide answers to a witness examination – when it concerns documents or information covered by legal privilege (see 5.2 Discovery and Third Parties).
Attorney-client legal privilege applies only to lawyers enrolled in the bar registry, not to in-house counsel.
Under Italian law, legal privilege also covers correspondence exchanged between parties’ counsel, and correspondence and documents concerning settlement negotiations.
When discussing legal privilege, however, it must be taken into account that the Italian system does not provide for the common law concept of “privilege”, pursuant to which privileged documents can never be presented in court. Italian legal privilege rules only bind attorneys; therefore, as a general rule, legal privilege is not enforceable toward a third party in possession of a privileged document.
Where documents are not covered by attorney-client legal privilege (see 5.5 Legal Privilege) or by any legal secret, a party cannot refuse to disclose them, if ordered to do so by the court. Not complying with this order means that the judge is allowed to infer elements of proof from this behaviour. Regarding the consequence for a non-complying third party, please see 5.2 Discovery and Third Parties.
The Italian Code of Civil Procedure provides for different ways to obtain injunctive relief.
Italian law provides for several types of precautionary procedure, all commonly intended to protect the plaintiff’s claims from any damages that may arise from the duration of the ordinary proceedings on the merits.
Italian law provides for typical and atypical precautionary measures.
In the first place, the Italian Code of Civil Procedure sets forth the so-called misure di istruzione preventiva, aimed at granting the early acquisition of evidence and, by doing so, ensuring the fundamental right to evidence belonging to each party in a proceeding.
In the second place, Italian law provides for two different forms of seizure:
Among the atypical measures, mention must be made of the provision set forth by Article 700 of Italian Code of Civil Procedure, which allows the judge to grant any urgent precautionary protection of the applicant's case and right to evidence by ordering any measures, the contents of which are discretionary and decided from time to time by the judge in light of the circumstances of the case.
Aside from the above, Italian law does not provide for injunctive relief for preventing parallel proceedings in another jurisdiction; rather, this matter is regulated by the applicable legal provisions on lis pendens.
The time needed for a precautionary measure to be granted by the judge is extremely variable and is influenced by several factors: the caseload of the competent court, the danger of delay and the likelihood of the application’s success (periculum in mora and fumus boni iuris), the degree of urgency of the application and the complexity of the main dispute.
The Italian legal system does not provide for “out of hours” judicial service; all disputes are therefore discussed and decided only during ordinary working hours.
According to the provision set forth by Article 669-sexies, paragraph 2 of the Italian Code of Civil Procedure, a precautionary measure can be obtained on an ex parte basis whenever the summoning of the defendant might damage the execution of the precautionary measure. However, even in this case, the judge is still required to schedule a hearing of the parties within the following fifteen days at the latest and the applicant must perform service of process upon the defendant within a compulsory deadline of eight days. At this hearing, the measure granted ex parte can be confirmed, modified or revoked.
The applicant can be held liable, under the provision set forth by Article 96, paragraph 2 of Italian Code of Civil Procedure, when the applicant, acting without the due professional diligence required, obtains and execute a precautionary measure related to a right that, after the final judgment, is decided to be non-existent or ungrounded.
Pursuant to Article 669-undecies of the Italian Code of Civil Procedure, the judge can impose a security upon the plaintiff in connection with the possible damages related to the execution of the precautionary measure.
Generally speaking, injunctive relief over the defendant's assets, such as seizure orders, are not ordered with regard to single assets, but rather with regard to all the assets of the defendant party, up to a specific seized amount, irrespective of where they are located. As a consequence, for this type of injunctive relief to be enforced abroad, the relevant court order should be first recognised and enforced in the state where the relevant assets are located.
Only in a very few, and exceptional, cases can injunctive relief be obtained against third parties. More precisely, seizure orders can be enforced against third parties, but only in respect of goods and assets belonging to the defendant, and not the third party itself.
The potential consequences of a respondent’s non-compliance are regulated by Article 388 of the Italian Criminal Code, according to which the breach of a judicial order is punishable with the penalty of imprisonment for up to three years or with a fine from EUR103 to EUR1,032.
Civil proceedings in Italy are conducted mainly through the exchange of written pleadings. However, in complex cases, or when many evidentiary requests are raised, the evidence gathering phase may take place through a number of oral hearings, as per the procedural calendar which shall be ordered by the judge.
As a general rule Italian civil proceedings are structured as follows:
Italian civil procedural law does not provide for pre-defined case management hearings in civil proceedings. Usually, case management decisions are taken by the judge at any hearing, depending on the specific needs of the particular case. When there are numerous evidentiary requests, the hearing scheduled for the admission of evidence requests is also dedicated to the definition of the procedural calendar for the evidence gathering phase.
There are no juries in Italian civil proceedings.
The rules governing the admission of evidence vary depending on the forms of evidence considered.
Parties are freely allowed to submit any documentary evidence they deem fit, and there are no specific rules for their admission; apart from legal privilege, trade secrecy and the evidentiary time limits to be complied with.
Witness testimony shall be requested by a party by identifying the witness offered, and detailing each of the questions that the party wishes to raise to that witness. In this respect it is important to highlight that under Italian law only leading questions can be raised to witnesses (the traditional formula being “Is it true that…”) and they cannot concern negative circumstances. Witness examination is rendered under oath, and it is governed by the judge while parties’ lawyers, as a general rule, cannot raise questions directly to the witness.
Each party has the right to request the formal examination of the other party in order to obtain a confession. As with witness testimony, the judge can admit this examination to the extent that it relates to specific circumstances which are relevant to the decision; such circumstances must be indicated by the requesting party. The formal examination, if admitted, is always conducted by the judge.
The judge has the power to order the parties, or a third party, to produce documents which are considered to be relevant to the proceedings (see 5 Discovery).
Please see 5.4 Alternatives to Discovery Mechanisms for the rules governing the admission of evidence.
In Italian civil proceedings expert testimony is traditionally rendered through a court-appointed expert (consulente tecnico d’ufficio). Parties can file expert reports as documentary evidence, but they are not granted the same evidentiary value as those in common law jurisdictions are. When, instead, a court-appointed expert is appointed by the judge, each party can appoint its own expert who shall attend the expert meetings and investigations and who shall render comments on the draft expert report to be filed by the court-appointed expert with the court.
Following the filing of the expert report with the court, the court-appointed expert can be heard by the judge for clarification or for supplementary investigation.
As a rule, hearings are public. The hearing records, which are not a verbatim transcription, are enclosed in the judge’s order and, upon a specific request, can be accessed by the public.
The main role of the judge in civil trials is to govern the proceedings, to evaluate and weigh the evidence offered, assess its admissibility and relevance to the case. The judge has also some discretion to further investigate the evidence offered and to request further evidence.
Judgments are seldom rendered directly at the hearing. The general rule is that the final judgment is issued following the final hearing and the final two rounds of conclusive written briefs. However, upon a party's request, or even on his or her own motion, a judge can decide to issue the final judgment orally after the oral discussion of the case.
Any decisions other than the final judgment, can be delivered at any time – during a hearing or outside a hearing – with an order which is notified to the parties by the court clerk's office.
The duration of legal proceedings is very much dependent on the workload capacity of the relevant court, since there can be an appreciable difference, in terms of lengthiness, among the various Italian courts. On average, before the most efficient courts, legal proceedings encompassing a standard taking of evidence phase can last around one to two years in the first instance, and around two to three years for the appeal proceedings. Ordinary proceedings before the Supreme Court, instead, last, on average, around three years.
The Italian legal system and the Italian Code of Civil Procedure allow parties to settle any lawsuit without court approval.
The settlement negotiation correspondence is confidential under the Italian Lawyers Bar Code of Ethics. Furthermore, settlement agreements have traditionally included confidentiality clauses, which are enforceable under Italian law.
Settlement agreements are enforceable contracts. Therefore, enforcement is primarily granted through the co-operation of the parties; when such co-operation is lacking and one party is in breach, the other party must activate the relevant dispute resolution clause as provided in the settlement agreement or commence ordinary court proceedings, as the case may be, or it may also proceed for direct enforcement, depending on the contents of the settlement agreement.
A settlement agreement can be set aside in a number of cases set forth by the applicable provisions of the Italian Civil Code including, but not limited to, cases in which:
The awards available to a successful litigant are divided into the following three main categories:
The compensation of damages can derive from breach of a contract or a tort.
Damage compensation for contractual liability:
The compensation for tort liability is limited to the direct economic damage. In certain specific circumstances, Italian law also allows compensation for non-economic (moral) damage.
Punitive damages are not provided by Italian civil law. Nevertheless, for commencing a judicial action in bad faith or defending a judicial action in bad faith, the judge can order the losing party to pay damages, even in the absence of a party’s request, up to an amount that can be discretionally assessed by the judge.
Claims for payment of amounts of money which are immediately collectable accrue default interest at a legal interest rate, which applies starting from the day after which payment is due, and until the day of payment. Default legal interest also accrues after a judgment is rendered, at the same interest rate. The legal interest rate is established each year by the Ministry of Economics and Finance; this rate applies unless the parties have agreed otherwise.
A specific and higher legal interest rate applies during judicial proceedings and in relation to commercial claims.
The winning party has the right to start enforcement proceedings (esecuzione forzata) if the losing party refuses or fails to comply voluntarily with the judgment. These enforcement measures include:
Unless a specific convention is in force between Italy and the state where the foreign judgment has been rendered, Article 64 of the Law No 128 of 1995 applies. According to Italian law, foreign judgments are automatically recognised in Italy provided that the following requirements are met:
In order to be enforced, the Court of Appeal (of the district where the foreign judgment has to be enforced) has to deliver a judgment in which it ascertains whether the aforementioned requirements are met. The judgment can be appealed before the Supreme Court.
The Italian legal system provides for various mechanisms ensuring a full review of judgments of first instance.
All decisions rendered by the Courts of First Instance can be appealed before the Courts of Appeal (save for decisions issued ex aequo et bono pursuant to Article 114 of the Italian Code of Civil Procedure and cases of revisio per saltum according to Article 360 of the Italian Code of Civil Procedure).
Decisions by the Courts of Appeal, unique level judgments and, in general, all decisions other than formal judgments, which nevertheless decide on subjective rights and are not otherwise subject to review, can be challenged before the Supreme Court.
Any decisions of first instance or appeal, under certain limited extraordinary circumstances (including, but not limited to, the case in which the decision is the consequence of fraud of one of the parties; the case in which the decision is issued on the basis of false evidence or the case in which the decision is the consequence of factual errors) are also subject to revocation and third-party opposition, as the case may be.
Decisions concerning procedural issues of jurisdiction and competence can be challenged separately in this respect before the Supreme Court with an ad hoc challenge.
Appeal against first instance judgments is always allowed, save for a few exceptions expressly provided by the law. The fundamental requirement for successfully filing an appeal is that the appealing party is the total or partial loser in the judgment of first instance and that the appeal complaint identifies the sections of the first instance judgment that are challenged. The appeal shall also overcome an admissibility test whereby the Court of Appeal, at the first hearing, can dismiss appeals if they do not have any reasonable prospect of success.
The procedure for appealing a decision of first instance is regulated by the applicable provisions set forth by the Italian Code of Civil Procedure under Articles 339 et seq.
The term for filing an appeal is two-fold: if the decision of first instance was served by the winning party, the losing party has a short term of 30 days from the service to appeal; if the first instance judgment was not served, the losing party can appeal within the longer term of six months, starting from the date of issuance of the judgment.
Under Italian law the appeal consists of a so-called impugnazione devolutiva, which means that the object of the appeal is not a mere review of the judgment of first instance, but rather a complete review of the proceedings and the rendering of a new decision in the dispute. However, this feature of the appeal is not without limits: indeed, in light of the prohibition on filing new forms of evidence, the review of the dispute is limited to the issues expressly brought before the Court of Appeal and it is forbidden for the parties to introduce new elements not already introduced and discussed during the judgment of first instance.
Courts cannot impose any conditions on the granting of an appeal.
Upon the filing of an appeal against a first instance judgment, the court can either reject the appeal (on procedural reasons or on the merits) or grant it. In this second instance, the decision issued by the Court of Appeal fully replaces the decision of first instance, save for a few cases in which the judgment of the Court of Appeal sets aside the judgment of first instance and return the parties and the dispute to the first instance judge for a new decision (so-called appello rescindente).
In exceptional circumstances, the Court of Appeal is also entitled to order the total or partial renewal of the acquisition of evidence pursuant to Article 356 of the Italian Code of Civil Procedure.
The plaintiff has to pay the upfront court tax (the so-called contributo unificato) at the time of filing the initial complaint. The value of the upfront court tax depends on the value of the claim and it is doubled when the lawsuit is brought in second instance or before the Supreme Court. In fast-track proceedings and in labour disputes, the upfront court tax is reduced by half.
Litigation costs are traditionally settled according to the “losing party rule”: within the final judgment the judge orders the losing party to pay the court’s expenses and the attorney’s fees (ie, the litigation costs) in favour of the winning party. Nonetheless, the judge has a wide discretion in the allocation of costs and, therefore, in specific circumstances, he or she can decide to set off the litigation costs or can allocate costs according to a different ratio.
The recoverable costs encompass the expenses and the costs borne by the parties during the proceeding and the lawyers’ fees. The recoverable lawyers’ fees are not assessed on the basis of hourly rates but on the basis of the standard quantification of attorney’s fees as provided in a Decree of the Ministry of Justice.
The decision on costs can be appealed.
The judge establishes the amount of costs to be awarded on the basis of the value and the complexity of the claim, as well as on the basis of what the parties have declared in the note on costs and their procedural behaviour, making reference to rules and parameters established by the Ministry of Justice.
If the judge assesses that some of the costs and expenses faced by the successful party are redundant or unnecessary, these costs will not be recoverable.
According to recent case law, legal interest also accrues on litigation costs, starting from the date on which the judgment becomes final.
In recent years the Italian legislature has shown a growing interest in the use of alternatives to the ordinary proceedings set out by the Code of Civil Procedure, in order to resolve civil or commercial disputes. Even if court litigation remains the most frequent channel to decide a dispute, the described trend has led to the proliferation of many laws opening up the possibility of ADR. For instance, mediation, as established by Legislative Decree 28/2010; assisted negotiation procedure, introduced by Law 162/2014; and compulsory attempt at conciliation in the medical field, introduced by Law 24/2017.
Though ADR procedures form part of the legal system, in the majority of cases they are not compulsory. However, in some cases, ADR tools are mandatory (for instance, ex lege mediation, the assisted negotiation procedure related to disputes regarding the payment of sums of money smaller than EUR50,000, and the compulsory conciliation in matters of medical liability, see 3.1 Rules on Pre-action Conduct) and in these cases the consequences of non-compliance with the ADR requirements are mainly represented by the inadmissibility of the claim before the ordinary court.
The institutions that provide ADR services are well organised in the Italian legal system. The main institutions are the mediation institutes within the Chambers of Arbitration at the Chambers of Commerce located throughout the Italian territory and the heterogeneous category of further private organisations that manage mediation procedures.
Under Italian law arbitration is regulated under Articles 806 et seq of the Italian Code of Civil Procedure. The applicable provisions have been modified most recently by Legislative Decree 40/2006. Arbitration in Italy is either ritual (and the arbitral award has the same value as a court’s ruling) or non-ritual (where the arbitral decision is, instead, of a contractual nature).
In the Italian legal system, all civil and commercial disputes are capable of being referred to arbitration, with the exception of the following matters: disputes concerning non-disposable rights; employment disputes except for cases in which arbitration is permitted pursuant to the applicable collective bargaining agreements; family law disputes; criminal proceedings; tax disputes; disputes concerning the status and capacity of persons; and disputes in which the presence of the Public Prosecutor is required.
The circumstances that allow a party to challenge an arbitral award before a domestic court differ depending on the nature of the arbitration.
In cases of ritual arbitration, the grounds for challenging the arbitral award are set out in Article 829 of the Code of Civil Procedure. These include (but are not limited to) cases in which the arbitration award is void; the arbitrator appointment is void; the arbitration award goes beyond the scope of the arbitration agreement; the arbitration award is issued beyond the agreed deadline; or there is non-compliance with the adversarial principle during the arbitration proceeding.
In cases of non-ritual arbitration, the grounds for a challenge are set forth by Article 808-ter of the Code of Civil Procedure. These include cases in which the arbitration agreement is void or the arbitration award goes beyond the limits set out in the arbitration agreement; the arbitrators are not appointed pursuant to the provision set forth by the agreement; the award is issued by someone who cannot be legally appointed as arbitrator; the arbitrators fail to comply with a compulsory provision set out by the parties in the arbitration agreement; or in cases of non-compliance with the adversarial principle during the arbitration proceedings.
In all the above case, the arbitration award cannot be challenged on points of law, save for the case in which the parties expressly provided for such a challenge.
With regard to the enforcement of domestic arbitration awards, ritual arbitral awards have the same value as court’s judgments, and therefore, to be enforced they shall simply be filed with the court to obtain the enforcement seal. In the event of non-ritual arbitration, non-compliance with the arbitral award requires the other party to start ordinary proceedings before a judicial court of first instance to obtain enforcement.
As far as the enforcement of foreign arbitral awards is concerned, the procedure is set forth by Articles 839 and 840 of Italian Code of Civil Procedure, which is an exact transposition of the relevant provisions of the New York Convention of 1958.
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