Litigation 2024 Comparisons

The Italian legal system is based on civil law. As such, it is based on the application of the laws. On the contrary, case law has no formal binding value, even if it is very common practice to quote it in judicial submissions and courts’ decisions, and it is de facto used as legal precedent.

Both civil and criminal judicial systems are generally based on an adversarial model, even if Italian law provides for some exceptions, allowing judges to act on their own initiative.

The legal process is conducted through both written submissions and oral arguments.

The Italian judicial system is divided into ordinary and special jurisdiction

Ordinary Jurisdiction

This is divided into civil and criminal parts. Both follow a three-level structure:

• Courts of first instance (lower courts and tribunals), which decide the merits of the dispute.
• Courts of appeal, which review the merits of the dispute for a second time. Tribunals are competent for reviewing the decisions issued by the lower courts. Courts of appeal review the tribunals’ decisions and are also judges of first instance in specific cases provided for by the law.
• Supreme Court of Cassation, which reviews only the legal arguments, by ensuring the uniform interpretation of the law and its correct application.

At the first level, the jurisdiction is determined on a value, territorial and subject matter basis. At the appellate level, the jurisdiction is determined on a territorial basis.

Both at the first and appellate levels, there are also divisions specialised in certain subject matters (eg, labour, corporate and intellectual property).

Special Jurisdiction

This is divided into various specialist courts:

• Administrative courts, which have jurisdiction for disputes involving the state and local governmental entities and rule on the legitimacy of administrative acts. The Administrative Regional Tribunals judge cases in the first instance; the State Council acts as an appellate court. Both are organised on a territorial basis.
• The Court of Accounts, which has jurisdiction in matters of public accounting and others specified by law.
• Military jurisdiction, which adjudicates on military crimes committed by members of the armed forces.

Finally, the highest judicial body is the Constitutional Court, which rules on, among other things, the constitutional legitimacy of laws and acts having the force of law, issued by the State and the Regions.

Court filings (parties’ submissions, minutes of the hearings, court’s orders, etc) are confidential and not accessible to the public.

On the contrary, judgments are accessible to the public; everyone, even if not party to the proceedings, is entitled to ask the court to release copies of the court’s decisions. Moreover, many judgments are also published in legal reviews and databases.

Only lawyers admitted to the Italian Bar Association are allowed to plead cases in court, except for small claims, which can be pleaded personally by the parties or by trainees.

For cases before the Supreme Court of Cassation, registration of the lawyers in a special Bar is required.

Lawyers from EU member states can conduct cases before Italian courts only if they are registered with the special “Register of Established Lawyers” and are assisted by an Italian lawyer.

Lawyers from non-EU member states cannot conduct cases before Italian courts unless they have passed a specific examination.

In Italy, third-party litigation funding (TPLF) is not specifically regulated.

Scholars unanimously confirm the admissibility of TPLF agreements, specifying that they are “atypical” agreements compatible with Article 1322 of the Italian Civil Code (CC), according to which the parties can enter into private agreements which are different from “typical” agreements established by the law (principle of contractual autonomy), provided that they “implement interests worthy of protection according to the Italian legal system”. In the TPLF’s case, the interest worthy of protection could be easier access to justice.

However, issues of invalidity may arise. For instance, if the funder is not a third party, but rather the funded party’s lawyer, and a contingency fee is agreed upon, such agreement could be considered null and void because Italian law prohibits lawyers from agreeing to contingency fees (see 2.6 Contingency Fees).

Any kind of lawsuit is available for TPLF. In Italy, TPLF is used for class actions, intellectual property cases, antitrust, product liability claims and mass torts.

TPLF is available for both the plaintiff and the respondent.

As TPLF is not regulated in Italy, the amount a third-party litigation funder will fund is not subject to any limitation whatsoever.

A third-party litigation funder will consider funding the entire case, from the attorneys’ fees to several other litigation costs, such as court duties and expert witnesses’ fees.

Article 13 of the Regulations of Lawyers (Law 247/2012) prohibits agreements on contingency fees, according to which a lawyer receives as legal fees a share of the good or rights which is/are the subject matter of the litigation. On the contrary, charging a success fee is admissible.

However, the prohibition on contingency fees may not be relevant if the funder is not a lawyer.

In Italy, there are no legal provisions establishing time limits on when a party to litigation should obtain TPLF.

It is not mandatory for the plaintiff to send a formal notice to the respondent before initiating a lawsuit. However, it is common practice to serve it and when it contains the formal invitation to pay a sum of money or to take some other action, it interrupts the running of the statute of limitation.

In specific cases set forth by the law, before initiating the lawsuit the plaintiff must mandatorily start an alternative dispute resolution procedure. See 12. Alternative Dispute Resolution (ADR).

The statute of limitation depends on the subject matter of the dispute. Generally, the ordinary statute limitation period is ten years, running from the date when the right can be exercised (eg, in the case of disputes concerning contractual liability). However, the CC also provides also for shorter limitations periods (eg, for disputes concerning tort liability the statute of limitation is five years, running from the date on which the unlawful conduct has occurred or became known to the harmed party).

The limitation periods and the dates on which they lapse cannot be derogated on a contractual basis.

The lapsing of the statute of limitation can be interrupted by serving the counterparty with a formal notice.

The defendant is subject to suit in the Italian courts if it is domiciled or resident in Italy, or has a representative authorised to stand trial there pursuant to Article 77 of the Civil Procedure Code (CPC), and in other cases where it is provided for by law.

Notably, foreign defendants can be sued in Italy under several EU Regulations and international conventions.

A civil lawsuit can be started in the form of writ of summons or petition, depending on the subject matter of the dispute and the procedure applicable to it.

The main differences between them are as follows:

• The writ of summons is served by the plaintiff to the respondent. After service, the case has not yet begun: the plaintiff must file it with the court within ten days from the service, otherwise the claim is null and void. Upon filing, the case is registered by the court.
• The petition is filed with the court, which registers the case and appoints a judge. The judge issues a decree to set the first hearing. The plaintiff serves the petition, together with the decree, to the respondent.

Both deeds must contain some mandatory information, such as the court receiving the claim, the details of the parties and their lawyers, a description of the subject matter of the claim, the confirmation that an ADR procedure has been conducted (if mandatory), a description of the factual and legal grounds of the claim and the conclusions, and an indication of the means of evidence.

The claims stated in the initial deeds may generally be better specified or modified in the manner and within the terms set forth by the law.

If the plaintiff wants to sue someone, it must serve the initial complaint as described in 3.4 Initial Complaint. The service procedure depends on whether the respondent is resident in Italy or not.

Service in Italy

According to the recent reform of civil procedure, pursuant to Legislative Decree 149/2022 (the “Cartabia Reform”), the general rule is that the court submissions must be served by lawyers (i) via certified e-mail (PEC), if the receiving party has one; or (ii) in certain circumstances, by filing the deed in a special web register.

If the service via PEC is not possible or requested by law, the service can occur in the ordinary ways; ie:

• service by bailiffs (i) by hand or (ii) through post by registered mail with return receipt; or
• service by lawyers through post by registered mail with return receipt.

Service Abroad

If the service must occur in an EU country, EU Regulation No 1784/2020 applies.

If the service must occur in a non-EU country, international/bilateral conventions or the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (the “Hague Service Convention”), depending on the receiving state, apply.

If the respondents fail to respond to a lawsuit, the court, after having ascertained that the claim was duly served to them, declares their default.

The trial continues in their absence and the final judgment is binding also for them.

Default does not amount to an admission of the facts stated in the lawsuit. The ordinary rules on the burden of evidence apply.

The judgment must then be served personally to the defaulting respondent, who can appeal it according to the general rules governing appeals (see 10. Appeal).

In 2021, an organic regulation for collective civil proceedings (a “class action”) came into force in Italy. It has been included in the CPC (Article 840-bis and following) and has abrogated the previous regulation contained in the Consumer Code.

The class action can be brought by non-profit organisations or associations registered in a public list established at the Ministry of Justice or by each member of the class, against companies or entities managing public services or public utilities and is aimed at obtaining ascertainment of their liability and judgment for compensation and restitutions.

The “opt-in” mechanism applies: the class members can opt-in (i) immediately after the court’s decree declaring the class action admissible or (ii) after the court has issued the judgment.

Furthermore, in June 2023, the “representative actions for the protection of the collective interests of consumers”, provided for Directive (EU) 2020/1828, came into force and are regulated by Italian Consumer Code. They can be brought by consumer associations and other public entities registered in a special register and are aimed at obtaining injunctive and redress measures. The same “opt-in” mechanism outlined above applies.

Article 13.5 of the Italian Regulations of Lawyers establishes that lawyers must provide their clients with a written estimate of the costs of the legal assistance, by distinguishing between charges and expenses, including court and professional fees.

Lawyers can freely agree their fees with their clients. With Ministerial Decree 55/2014 (and subsequent modifications), the Italian legislature established parameters that are used by the courts to determine lawyers’ fees and that are commonly also used by lawyers as a guideline.

According to the Italian CPC, it is possible to apply for interim measures both before starting the lawsuit or during it. There are two categories of interim measures: anticipatory and conservative.

Anticipatory Interim Measures

They anticipate the effects of the action on the merits, without, however, the obligation to subsequently act on the merits. Indeed, these measures remain effective even if the parties do not act on the merits or the action on the merits is extinguished. The most common are:

• orders aimed at preventing harm that the plaintiff could suffer from a work in the course of realisation or by an existing building, tree or other good (Articles 1171 and 1172, CC);
• preventive taking of evidence (witness evidence, technical ascertainment and judicial inspection of places or goods) (Articles 692 – 699, CPC);
• orders aimed at protecting the right of possession (Articles 1168 and 1170, CC); and
• other urgency measures (Article 700, CPC).

Conservative Interim Measures

They have a temporary effect and are preliminary to the merits action. The most common are:

• judicial seizure of (i) movables or immovable property and companies and (ii) books, registers, documents, models, samples and any other thing from which evidence is claimed (Article 670, CPC); and
• conservative seizure aimed at freezing the debtor’s assets and receivables (Article 671, CPC).

The Cartabia Reform, in compliance with its aim to accelerate and simplify civil proceedings, has introduced the possibility for a party to apply for early judgments.

A party can ask the judge (i) to immediately grant their claims, without waiting for the end of the proceedings, if the facts are proved and the opponent’s defences are manifestly ungrounded (Article 183ter, CPC); and (ii) to immediately reject the opponent’s claims, if they are manifestly ungrounded or if the writ of summons is null and void and such nullity has not been cured by the plaintiff (Article 183quater, CPC). Application (i) can be submitted during the whole proceedings, while application (ii) must be submitted within the first hearing. The order granting such an application can be challenged.

A creditor of a certain sum of money or one who is entitled to delivery of goods and is at the same time able to provide written proof of its claim may apply for an order for payment or delivery against the defendant. The defendant may file opposition proceedings within 40 days after service of the order. In certain specific cases – eg, where a delay could seriously jeopardise the claimant’s rights – the order may be declared immediately enforceable. Otherwise, the order becomes final and enforceable if the defendant does not file an opposition.

Orders for payment or injunctions for delivery of goods may also be obtained during ongoing proceedings if the claimant can provide written proof of its right or if the order is limited to the amount acknowledged as due by the other party.

In the appeal phase, the respondent can apply for the immediate declaration of inadmissibility of the appeal if it is inadmissible or clearly groundless.

Similarly, in a trial before the Court of Cassation, the petition may be immediately declared inadmissible when the judgment appealed clearly aligns with the case law of the Court or when the action is manifestly groundless.

The dispositive motions commonly made at the very beginning of the trial are those outlined in 4.2 Early Judgment Applications.

Third parties not named as a plaintiff or respondent can join the lawsuit. The three main kinds of third-party joinder are outlined below.

Voluntary Joinder (Article 105, CPC)

Any interested individual can join a lawsuit pending between other parties by raising an autonomous claim or by supporting the arguments of any of the parties. The joinder is made by filing a statement of defence and must occur before the filing of the final briefs.

Joinder Upon Request of a Party (Article 106, CPC)

The parties can ask for the judge’s authorisation to sue a third party whom they deem to be involved in the case or whom they seek to be held harmless. The plaintiff can file such a request only if the need to summon the third party has arisen from the respondent’s arguments in its statement of defence and must submit it in its first written brief. The respondent must insert such request in its statement of defence.

Joinder Upon the Judge’s Order (Article 107, CPC)

The judge can order the joinder of a third party when this is appropriate. The judge’s order can occur at any time during the first instance proceedings.

A respondent cannot apply for an order that the plaintiff/claimant must pay a sum of money as security for the respondent’s costs.

Under Italian law, the judge rules on the costs of the interim applications/motions if the latter is requested before the start of the lawsuit and:

• is rejected due to lack of jurisdiction or because it was not grounded (Article 669septies, CPC); or
• has an anticipatory nature (Article 669octies, CPC).

If the interim measure is requested during the proceedings, costs are awarded with the final judgment.

Italian courts usually rule on interim applications quite quickly, within a timeframe of three to eight weeks, depending on the measure.

Interim proceedings are dealt with by courts on an urgency basis. However, in case of particular urgency, the applicant can ask the court to very urgently rule on the motion, by explaining and proving such need.

Italian legal system does not provide for pre-trial discovery, as understood in common law jurisdictions.

Taking of evidence is only admitted during the lawsuit and is administered by the court (see 5.4 Alternatives to Discovery Mechanisms).

See 5.1 Discovery and Civil Cases.

Pre-trial discovery does not exist in Italy.

Italian civil proceedings are based on the principle of “burden of proof”, according to which whoever wants to assert a right in court must prove the facts on which the right is based and whoever objects the ineffectiveness of such facts or that the right has been modified or extinguished, must prove the facts on which the defence is based (Article 2697, CC).

The judge must ground the decision on (i) evidence provided by the parties and (ii) facts that are not specifically challenged by the opponent.

There are two macro-categories of evidence:

• documentary evidence, which includes the electronic document, the private deed, the private deed whose signature is certified by a notary public, and the public deed drafted by a public official, and which is admitted into the record through simple filing with the court; and
• oral evidence, which includes confession, formal interrogation of the parties, oath and witness evidence, and which must be (i) requested by the party within the second written brief, (ii) admitted by the judge and (iii) taken by the judge during specific hearings.

In certain cases the parties can:

• prove facts through presumptions;
• ask the judge to order the production of documents from other parties to the lawsuit or third parties (Article 210, CPC) – the court shall determine the time and manner for the production of documents indispensable to understand the facts of the case (provided that this can be done without serious detriment to the parties or any other third party and in observance of professional secrecy); and
• ask the judge to appoint experts for the investigation on technical issues.

Moreover, in a derogation from the adversarial system, judges can order the taking of evidence that was not provided or requested by the parties on their own motion. In particular, they can order:       

• the personal appearance of the parties to interrogate them (Article 117, CPC);
• the inspection of people and things (Article 118, CPC); and
• the taking of witness evidence (Article 257, CPC).

The Italian Regulation of Lawyers and Lawyers’ Code of Conduct impose on lawyers the duty to keep secrecy and maximum confidentiality regarding the activity performed and all information provided by the client, as well as all information of which they have become aware during the mandate (“professional secrecy”).

As a result, lawyers cannot be compelled to testify on such facts and information.

Moreover, according to Lawyers’ Code of Conduct, lawyers cannot disclose in court:

• correspondence between lawyers marked as confidential; and
• communications between lawyers containing proposals and acceptances of settlement agreements.

The failure to comply with such duties implies the imposition of sanctions by the Bar Association.

In-house counsel are not subject to professional secrecy, unless they are members of the Italian Association of Inhouse Lawyers, whose Code of Conduct provides for the duty of professional secrecy.

A party can refuse to disclose documents, without negative consequences being inferred, only when:

• disclosure could cause a severe harm to it; and/or
• the documentation is protected by professional secrecy (Article 200, Criminal Procedure Code), which applies to priests, lawyers, ex parte experts, private investigators, doctors, pharmacists, nurses and public officers holding state secrets.

Bank secrets do not fall under the mentioned provision; however, the courts are increasingly showing willingness to protect the privacy rights of bank clients who are not involved in the dispute.

According to Italian case law, the request of disclosure cannot be rejected for privacy reasons, as the needs of justice prevail over personal data protection.

In Italy, “injunctive relief” as understood in common law systems, corresponds to the interim measures regulated by the CPC, already described in 4.1 Interim Applications/Motions and 4.7 Application/Motion Timeframe.

Interim measures may be awarded by the court if the plaintiff proves the existence of two elements:

• “fumus boni iuris” – the likelihood that a right exists; and
• “periculum in mora” – imminent and irreparable damage that threatens the asserted right, during the time needed for its protection in the merits action.

See 4.7 Application/Motion Timeframe.

The applicant can request the judge to issue the interim measure without notice to the respondent and without the respondent present (inaudita altera parte) when there is the risk that the notice to the respondent would jeopardise the execution of the measure (Article 669sexies, CPC).

In such a case, the judge grants the measure by issuing a decree and, contextually, sets a hearing for the appearance of the parties. The applicant must serve the respondent with the motion and the decree. At the hearing, in the presence of both parties, the judge confirms, modifies or revokes the interim measure.

If the respondent successfully later discharges the interim measure, the applicant can be ordered to:

• compensate damages to the respondent;
• reimburse legal costs to the respondent; and/or
• compensate damages for having brought the action in bad faith or with gross negligence.

Article 669undecies of the CPC establishes that the judge can charge the applicant with a security for possible compensation for damages.

The injunctive relief may relate to all the debtor’s assets, including those located abroad.

Some kind of interim measures can be obtained against third parties.

Examples are the preventive interrogation of witnesses that is ordered against a third party (the witness) or the conservative seizure of the debtor’s receivables, which is addressed to the third party who owes the money to the debtor (eg, the seizure of a bank account is addressed to the bank, the seizure of the debtor’s wages is addressed to the employer).

Consequences if a respondent fails to comply with the terms of an injunction depend on the kind of injunction, as set out below:

• For injunctions involving obligations of delivery, release, doing, and refraining from doing something, the judge obliges the respondent to perform the order with the aid of a bailiff and, if needed, of public forces (eg, police).
• Seizure of movable assets and credits is enforced through attachment and (ii) seizure of properties is enforced through the registration of the injunction with the competent Public Register of Properties.
• Article 614-bis CPC regulates the so called “astreintes”, according to which if the judge orders the performance of obligations other than the payment of sums of money, they can fix, upon the party’s request, a sum of money owed by the obliged party for each subsequent breach or delay in the performance of the order.
• In the field of copyright, Article 156 of Law on Copyright (L. 633/1941) provides for a monetary sanction in the event of non-compliance with the injunction issued by the court.

• In the area of the class action, Article 840-sexiesdecies of the CPC provides for the possibility for any person interested in obtaining an injunction against an action or conduct detrimental to a plurality of individuals or entities to bring an action to obtain an order to cease or prohibit the reiteration of such action or conduct. In ordering the cessation of the conduct, the court may, upon request of the public prosecutor or of the parties, order the losing party to take the appropriate measures to eliminate or reduce the effects of the violations ascertained.
• As regards intellectual property, the owner of an IP right may apply for an injunction to prohibit the manufacture, trade and use of the infringing items, and an order to remove the same items from the market against those who own them or otherwise have access to them. By issuing the injunction, the judge may fix a monetary sanction for each violation or act of non-compliance subsequently ascertained and for each delay in the execution of the measure. In addition, the judgement ascertaining the infringement of an industrial property right may order the destruction of all infringing objects, if there are no special reasons against this, at the expense of the infringer. The destruction of the object may not be ordered and the right holder may only obtain damages if the destruction of the object is detrimental to the national economy.

In some cases, failure to comply with an injunction could lead to a criminal offence. For example, Article 388 of the Italian Criminal Code establishes that anyone who removes, suppresses, destroys, disperses or cause the deterioration of an item of their property subject to enforcement or a judicial or conservative seizure is punished with imprisonment and a fine.

If the court considers that the case is not ready to be decided on the basis of documentary evidence, it determines the time, place and manner of taking evidence, bearing in mind the existing procedural timetable.

As a rule, the investigation phase is predominantly oral (if testimony is admitted, for example, the judge will set one or more hearings for the witnesses to testify).

Witnesses are heard by the judge during the hearings in the presence of the parties’ respective lawyers.

If an expert is appointed by the judge, they shall appear before the court to swear the oath, shall file the report with the court and appear once again before it to provide clarifications on the report.

Once the taking of evidence is ended, the parties generally submit final conclusions and briefs and the court issues its judgment.

In civil trials, hearings can last hours or a few minutes, this depending on the complexity of the subject matter of the hearing.

For example, the hearings set for the interrogation of the parties or the witnesses can take more time and if more than one witness must be interrogated, the judge usually schedules several hearings to take the testimony, taking into account the court’s workload.

In Italy, jury trials are not available.

As a rule, the parties must submit or request the admission of evidence within the deadlines set forth by the CPC. Failure to respect them leads to inadmissibility of the evidence and the judge cannot take them into account in the final judgment.

Other requirements for admission of evidence are the following.

Documentary Evidence

Documents must be filed in a specific format and must be pertinent and relevant for the decision in the case.

Witness Evidence

Italian law provides for several limits of admissibility of witness evidence. The most relevant are the following:

• the parties cannot be heard as witnesses, but can be interrogated on facts adverse to their case;
• persons who have a direct interest in the case cannot be witnesses; and
• the questions to witnesses must respect certain requirements (eg, they must refer to specific facts). 

Written testimony is allowed only with the agreement of all the parties and with the judge’s consent.

In Italy, when the case entails the ascertainment of technical matters, the judge, on its own motion or upon the parties’ request, can appoint an expert to whom specific queries are addressed. Experts are judges’ auxiliaries and, as such, must maintain their independence and objectivity. The parties can appoint their own trusted experts.

After the expert has accepted the mandate, they appear before the judge to swear the oath, conduct the technical activities in the presence of the party-appointed experts, draft an expert report, submit it to the parties who can make observations, file the final report with the court, and appear before the judge to give clarifications.

Normally, civil hearings are not public: only the parties and their lawyers can attend them. When invited by the judge, the court expert and the witnesses can also attend the hearing.

There are no transcripts, but rather short minutes of the hearing, which are not public.

Judges lead the whole trial: they set the calendar for the hearings and chair them; impose deadlines; admit and take the evidence; make costs awards; issue orders and the final judgment.

Judges have also deep case management powers. For instance, they can order the personal appearance of the parties and try the conciliation or can order the parties to go to mediation; can order the taking of evidence not requested by the parties and appoint experts; can raise issues on their own motion (eg, nullity of an agreement or lack of jurisdiction); can order the parties to pay damages for abusive trial; etc.

Judges can decide on the parties’ claims and defences, at their own choice, at the hearing or reserve the decision to a later date.

In certain cases, the final decision can be given during the hearing, immediately after the parties’ final discussion of the case.

The duration of the proceedings depends on several factors, among which are the specific court before which the proceedings are pending, whether or not the judge orders the taking of witness evidence, and the attitude of the parties and the judge.

The first instance of civil proceedings for commercial disputes generally lasts around three years. The “simplified civil proceedings” can be much shorter. The appeal proceedings normally last one to two years. The Court of Cassation proceedings usually last not less than two years.

Settlement of a lawsuit is a private matter, except where the dispute involves family or similar matters. Thus, the judge has no authority over it and must be limited to taking notice of the agreement and issuing the necessary provisions (eg, extinction of the lawsuit).

Settlement of a lawsuit is per se confidential, unless the parties have reasons to disclose it.

It is standard practice to include a confidentiality clause in settlement agreements. However, the duty of confidentiality can be overcome upon an order of disclosure issued by the court or by any other public authority.

If a party to the settlement agreement does not spontaneously fulfil it, it is common practice that the non-breaching party serves the other party a pre-trial formal notice with the invitation to perform the agreement.

If the agreement is still not performed, the non-breaching party can enforce the settlement agreement by starting a lawsuit. In certain cases, a settlement agreement can be directly enforceable.

Settlement agreements can be set aside by promoting, depending on the circumstances, an action for nullity, annulment, termination or by withdrawal.

Action for Nullity

The settlement agreement is null and void (i) if the parties were not entitled to dispose of their rights, (ii) if it concerned a subject matter for which the law requires the written form under penalty of nullity and has not been signed in writing, (iii) if it concerns an unlawful agreement, or (iv) in the other cases provided for by the law. 

Action for Annulment

The settlement agreement is annullable (i) if the plaintiff was aware of having started the lawsuit abusively, (ii) if it is based on documents which turned out to be false or if documents come to light after the settlement proving that one of the parties had no rights, (iii) if the dispute was already decided with res judicata judgment unknown to the parties, (iv) for error (not concerning the right that forms the subject matter of the dispute), or (v) for malice or violence of a party. 

Action for Termination

The settlement agreement can be terminated (i) by mutual consent, (ii) in the case of a breach of the agreement, (iii) due to supervening excessive onerousness, or (iv) due to total impossibility to perform it.

Withdrawal

This is available if the right of withdrawal is provided for in the settlement agreement.

In Italy, the successful litigant can obtain three kinds of judgment, depending on the nature of the claim:

• monetary judgments, which end with an order to the losing party to pay an amount of money;
• injunctions, which end with an order to the losing party to do or not to do something;
• constitutive judgments, which create, modify or extinguish a legal relationship.

Moreover, upon the conclusion of the trial, the successful litigant can obtain an award against the losing party for the legal costs and fees.

The Italian CC contains a multitude of rules on damages compensation. The most relevant are the following.

Both in case of contractual and tort liability, damages must include the loss suffered by the damaged party and the loss of earnings, insofar as they are an immediate and direct consequence of the breach or the unlawful conduct. If the loss is attributable also to the harmed party’s conduct, the amount of compensation must be reduced. If the damage is caused by more than one person, they are all jointly and severally liable.

In contractual liability only, if the breach of contract does not depend on the debtor’s bad faith, compensation is limited to the harm that could have been foreseen at the time the obligation arose.

If the parties have inserted in the agreement a “liquidated damages clause” for the case of breach of contract or delay in the performance, the compensation shall be limited to the amount of the liquidated damages, unless the parties have agreed in the contract that further damages are also indemnifiable.

As a general rule, the damaged party must prove to have suffered a loss, that the loss is a direct consequence of the other party’s conduct, as well as the relevant amount. However, in certain cases, damage can be determined by the judge on an equitable basis.

Punitive Damages

“Punitive damages”, as understood in common law countries, do not exist under Italian law. However, it’s noteworthy that in 2017, the Court of Cassation ruled that a US judgment awarding punitive damages could be acknowledged and enforced in Italy, as it did not contravene any principles of Italian law.

Under Italian law, all receivables having as object a sum of money may automatically accrue interest, without need of a formal notice. The only exception to this rule concerns interest due on rent instalments, which accrue only after the service of the formal notice (unless the parties have agreed differently). Interest accrues from the due date of the obligation.

It is possible to distinguish between legal interest (established by the law) and conventional interest (agreed by the parties).

Legal interest can be further divided into two categories: (i) interest provided for by the Italian CC, which can be modified every year by the Ministry of Treasury; and (ii) interest regulated by the special regulation on late payments in commercial transactions (Legislative Decree 231/2002). Normally, rate (ii) is higher than rate (i).

The entitled party can collect interest both on the period before judgment is entered and after the issuance of the final judgment.

Article 1284 of CC clarifies that from the date of filing of the claim with the court, interest rate (ii) applies, irrespective of the nature of the contractual relationship.

According to Article 2948, No 4 of the CC, the statute of limitation applicable to the payment of any kind of interest is five years.

In Italy, judgments are immediately enforceable, irrespective of a possible appeal.

However, in certain circumstances immediate enforceability can be suspended by the court of appeal, upon the interested party’s request.

Judgments can be enforced through the attachment procedure, which generally starts with the service by the successful party to the losing party of the judgment together with a “precetto”; ie, a formal intimation to pay the due amounts within ten days, with the warning that, failing payment, the enforcement proceedings will be started.

If payment does not occur, the successful litigant can promote (also simultaneously) three kinds of attachment concerning:

• the debtor’s movable assets;
• the debtor’s receivables to third parties (eg, attachment of the bank account or of the wages); and
• the debtor’s immovable assets.

Each attachment is conducted by a bailiff under the direction of a judge.

With reference to enforcement of foreign judgments, Italy is subject to the following treaties and regulations:

• Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels recast Regulation”) according to which a judgment given in a member state shall be recognised in the other member states without any special procedures being required.
• The Lugano Convention dated 30 October 2007 on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters entered into between the European Union and Denmark, Iceland, Norway and Switzerland, which provides recognition rules similar to the Brussels Convention.
• The Hague Choice of Courts Convention of 30 June 2005, according to which recognition of the judgments given by the court of a contracting state designated in an exclusive choice of court clause may be refused only on the grounds specified by the Convention.
• The Hague Convention concluded on 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters, that came into effect on 1 September 2023 and provides for specific requirements for recognition and enforcement.

Enforcement of judgments issued in foreign countries that have not signed/ratified the aforementioned conventions is regulated by general rules set out by the Italian International Private Law 218/1995, according to which a foreign judgment is recognised and enforced in Italy if the prerequisites indicated in Article 64 of are met (amongst others, the foreign judgment has to be res iudicata and must not be contrary to Italian public policy).

Under the Italian CPC, judgments can be challenged with the following deeds: appeal, appeal to the Supreme Court of Cassation, revocation and third-party opposition.

Appeal

Judgments rendered at first instance by the lower courts may be appealed before the tribunals; those rendered by tribunals can be appealed before the courts of appeal.

Recourse to the Supreme Court of Cassation

Judgments issued by appeal courts can be challenged before the Supreme Court of Cassation only on the following grounds:

• jurisdiction;
• for infringement or misapplication of rules of law and national collective labour agreements and contracts;
• for nullity of the judgment or of the proceedings;
• for failure to examine a fact decisive for the proceedings that was discussed between the parties.

Revocation

Judgments which are final and binding may be challenged by way of revocation:

• if they are the result of fraud committed by one party against the other;
• if they were based on evidence that was recognised or declared false after the judgement or that the losing party was unaware of having been recognised or declared false before the judgement;
• if after the judgement one or more decisive documents which the party had not been able to produce in court due to force majeure or the opponent’s acts were found;
• if the judgment is contrary to another previous judgment having the force of res judicata between the parties;
• if the judgment is the result of the judge’s fraud that was ascertained in a judgment that has become res judicata.

Third-Party Opposition

A third party may object to a final or otherwise enforceable judgment rendered between other persons when it affects its rights.

All judgements delivered by tribunals can be appealed to the Court of Appeals and all judgments issued by the Court of Appeals can be challenged before the Supreme Court of Cassation. There are no specific requirements such as leave to appeal.

The appeal of first instance judgments begins with the service of a deed of appeal to the other party, which must occur within either:

• 30 days following the service of the judgment to the appellant; or
• six months from the date of the judgment’s delivery by the court if the judgment was not served.

After the service, the appeal must be registered with the court of appeal.

The party against whom the appeal is sought must file its statement of defence within 20 days before the first hearing. If it intends to appeal the judgment in its turn, it must submit a cross-appeal in the statement of defence.

At the first hearing, the court can stay the provisional enforceability of the first instance judgment upon the request of the interested party and attempt the conciliation of the parties. In theory, the Court of Appeal might decide to repeat the evidence taken in the first stage, but this is extremely rare.

At the end of this phase, the parties specify their conclusions, file the final briefs and the court issues the decision.

The court of appeal re-examines the merits of the case for a second time, within the limits of the grounds of appeal raised by the appellant.

The CPC specifies that no new claims can be introduced in the appeal proceedings, and if such claims are introduced, they must be automatically deemed inadmissible.

The introduction of new evidence and documents is not allowed, unless the party proves that filing was impossible in the first instance proceedings for reasons not attributable to it.

Courts cannot set prerequisites for granting an appeal.

After having heard an appeal, the appellate court can issue a judgment:

• in which it confirms or revises, either in entirety or partially, the first instance judgment or
• referring the case back to the first instance court if (i) it ascertains that the service of the writ of summons was invalid or that the first instance judgment needed the presence or the exclusion of a party, or (ii) it declares the first instance judgment as null and void, following the appropriate procedures.

As a general rule, the losing party shall be ordered to reimburse the prevailing party for the whole or part of the costs of the litigation, including the court fees, expenses and attorney’s fees. If the claims are only partially upheld, or in particularly complex cases, the court can order that each party pays its own costs.

The costs award is contained in the final judgment. Therefore, such decision can be challenged before the Court of Appeals or the Supreme Court of Cassation.

In awarding the attorneys’ fees, the court shall apply the parameters set forth by Ministerial Decree 55/2014, concerning the payment of lawyers’ fees, according to which the amount of fees depends on several factors, such as the value of the case, the number of parties involved, the complexity of the case, etc.

The judge can also order the parties to pay compensation for procedural misconduct or abusive litigation. The amount of court fees is established by the law. The other expenses (eg, the court expert’s fees, translations costs) are liquidated by the court upon submission of the relevant fiscal document attesting the cost.

Interest on legal costs automatically accrues from the date when the judgment becomes final and binding (res judicata). As to the interest rates, see 9.3 Pre- and Post-Judgment Interest.

In recent decades, the use of ADR has increased rapidly compared to the use of ordinary litigation, especially in the area of commercial litigation. This is also demonstrated by the recent Cartabia Reform that dealt with the implementation of these instruments, which have the advantage of allowing fast and effective resolution of disputes, with lower costs and greater confidentiality.

In Italy, the most popular ADR procedures are mediation, assisted negotiation procedure and arbitration.

Mediation

Mediation is regulated by Legislative Decree 28/2010. It is conducted by an impartial third party (the mediator), who assists two or more parties in seeking an amicable agreement for the settlement of a dispute, including by making a proposal for the resolution of the same.

A special mediation procedure is “family mediation”, an instrument aimed at avoiding divorce, that is conducted by the parties’ lawyers acting as mediators.

The assisted negotiation procedure

This is regulated by Law 162/2014. It is conducted by the parties’ respective lawyers, who assist the parties in finding a settlement agreement.

Arbitration

See 13. Arbitration.

ADR has become essential in the Italian legal system, in particular in an attempt to reduce the Italian courts’ workload. As a matter of fact, in many circumstances, a specific alternative dispute resolution method is a condition for the admissibility of court proceedings.

Mediation

Mediation can be started on a voluntary basis or can be compulsory. It is compulsory:

• for disputes concerning specific matters (condominium, rights in rem, division, inheritance, family pacts, lease, business lease, medical malpractice, defamation and libel, insurance, banking and financial contracts, partnership, consortiums, franchising, labour);
• if it is ordered by the judge; or
• when a mediation clause is inserted in an agreement or in the company’s by-laws.

Compulsory mediation is a condition for the admissibility of the court proceedings.

If the party invited to mediation fails to attend the first meeting without a justified reason, the judge:

• can infer arguments of evidence against it;
• orders such party to pay an amount corresponding to twice the court’s fees; and
• may order such party to pay to the other party an amount not exceeding the costs of the proceedings accrued after the conclusion of the mediation procedure.

Assisted negotiation procedure

The assisted negotiation procedure is mandatory and is, thus, a condition of admissibility of the action, for disputes concerning compensation for damages caused by the use of vehicles and watercraft, as well as for any kind of action whose value does not exceed EUR50,000. In this last case, if the dispute is simultaneously subject to mediation and to assisted negotiation, mediation prevails.

Failure to reply to the invitation within 30 days from receipt or its refusal may be considered by the court in the costs award.

Arbitration

Arbitration is compulsory only if the parties have agreed to refer their disputes to arbitration in an agreement or in the company’s by-laws. As a result, in this last case, ordinary courts lack jurisdiction.

Institutions that provide and promote mediation in Italy are public or private entities that must be registered in the Register of Mediation Bodies, kept at the Ministry of Justice.

They are efficiently structured and composed of professionals who have followed a training course on mediation.

Domestic arbitration is regulated by the CPC (Articles 806 and seq, CPC).

The parties can defer to arbitration disputes concerning disposable rights only (ie, those rights that can be transferred), unless the law expressly provides otherwise.

To resolve their dispute, the parties can freely decide to start arbitration, or must compulsorily promote arbitration if they have entered into an arbitration agreement (compromesso) or if the arbitration clause is provided for in the agreement or in the company’s by-laws.

Arbitration proceedings can take the form of:

• ad hoc arbitration where the parties establish the rules governing the arbitration process or delegate this authority to the arbitrator(s)); and
• institutional arbitration where the parties bring their dispute before a specialised institution which applies its own set of rules.

Third parties can join the arbitration with the consent of the other parties and the arbitrators.

Arbitrators can issue interim measures if the parties have agreed upon such possibility before starting the arbitration.

Disputes concerning non-disposable rights cannot be referred to arbitration.

Labour law disputes may be settled by arbitrators only if provided for by law or in collective labour contracts or agreements.

The award is subject to appeal on grounds of nullity, revocation and third-party opposition.

Nullity

The award can be challenged on grounds of nullity in several cases, basically consisting of procedural errors and violations, if the award contrasts with a previous award or judgment that can no longer be appealed, or if there is a lack of decision on the merits or on some claims or defences.

An appeal of the award for violation of the rules of law concerning the merits of the dispute is admitted only if this ground of challenge was expressly agreed upon by the parties or is contemplated by the law. Appeal for contrast of the award with public policy is always allowed.

Revocation and Third-Party Opposition

See 10.1 Levels of Appeal or Review to a Litigation.

Domestic awards have the same legal effects as a judgment issued by an ordinary court.

Domestic awards can be enforced only if they have been declared enforceable by the court in whose district the seat of arbitration is located. To this end, the interested party shall file the award, together with the document containing the arbitration agreement, in original or certified copy, with the clerk’s office of that court, which declares it enforceable by decree (subject to appeal). The award can then be enforced through the ordinary attachment procedures (see 9.4 Enforcement Mechanisms of a Domestic Judgment).

A foreign award can be enforced in Italy if it has obtained exequatur – ie, it is granted by the court of appeal of the opposing party’s place of residence (if located in Italy) or with the Court of Appeal of Rome (if the opposing party resides abroad). The court merely reviews the formal requirements of the award and does not identify any defects in the award that would entitle the parties to appeal. The court will then issue an enforcement order, following which the award will become equivalent to an enforceable judgment.

The court can refuse recognition of the award in the cases set forth by the New York Convention, which Italian courts apply directly.

To date, there are no proposals for dispute resolution reform, since the Cartabia Reform recently renovated the dispute resolution system.