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Portolano Cavallo concentra la propria attività nel settore TMT sin dalla sua nascita nel 2001 ed è ora riconosciuto come lo studio legale italiano leader in questo settore.
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Portolano Cavallo è stato fondato nel 2001 dai soci Manuela Cavallo e Francesco Portolano. L’attività dello studio si concentra soprattutto su M&A e sul settore Media, sotto ogni aspetto.
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Ita / Eng
mag 15

ITALIAN CIVIL PROCEDURAL LAW: THINGS ARE MOVING FORWARD

Generally speaking the duration of trials is recognized as one of the most critical issues facing the Italian court system. The latest statistics show that an average of 844 days goes by from the day a claim is filed to the day the Court delivers its decision. While that number is fairly reflective of general opinion on Italian justice, it nevertheless does not represent the full picture.

What it is not always clear to both domestic and international investors is that the average duration of a trial dramatically decreases when a claim is filed in the main Italian Courts such as those of Milan, Turin and Rome. Average durations of first instance trials – 424 days (Turin), 545 days (Milan) and 693 days (Rome)[1] – contrast markedly with the general perception of the speed of justice in Italy.

The faster times quoted above have been made possible by the fact that, in the last decade, Italian Civil Procedural Law has been targeted by several reforms aimed at speeding-up judicial proceedings and reducing backlogs. Following this trend, in 2014 additional, significant developments were introduced by Law Decree no. 132/2014 (passed into Law no. 162/2014) in the following areas:

1) Transfer to arbitration of a proceeding started before an ordinary judge

When the judge has not yet ruled on a civil case, the parties may agree to transfer the claim before an arbitration tribunal, if specific requirements provided by the law are met. This procedure is precluded only in minor cases, such as disputes regarding inalienable rights, labor, national insurance or welfare. Arbitrators need to be lawyers enrolled in the Italian Bar Association.

The arbitration award must be determined within 120 days of the appointment of the arbitral panel, so, for these cases, the reform halved the normal duration of arbitration proceedings as provided by Article 820 of Italian Civil Procedural Law.

2) Increase in the cases that can be decided with a summary judgment

The reform also introduced the possibility of switching from an ordinary procedure to a summary one. The latter is a simplified method of handling certain civil matters, applicable only when the claim is not heard before a panel of judges. In order to grant the transfer, the judge shall take into account the complexity of the whole dispute and in particular the requests for evidence made by the parties.

3) Assisted negotiation

The parties may decide to enter into an agreement (a so-called “Convenzione di negoziazione assistita”) which aims to amicably settle the dispute in good faith, with the mandatory assistance of their lawyers, before filing a claim with the judge. The offer to conclude such an agreement is mandatory for claims regarding damages subsequent to circulation of vehicles and generally for all matters where one party demands payment of a sum not exceeding Eur 50,000.00 from the other, notwithstanding some exceptions in relation to particular legal issues involved in the proceedings and expressly provided by the law.

Where the parties are able to settle the dispute, the final agreement, duly signed by them and by the assisting lawyers, is considered a writ of execution and is fully enforceable. Moreover, it is a breach of professional ethics for a lawyer who signed the agreement to appeal against it.

4) Reduction of the suspension of Courts’ activities

Another aspect subject to reform is the period during which all judicial activities are suspended. This period has been significantly reduced and has now been set at August, 1st to August, 31st.

5) The “filtro in appello”

Since the past several years a so-called “filtro in appello” has been in place in Italian civil processes before Appellate Courts.

In a nutshell, after the first judgment, if the losing party appeals the decision before the competent Court of Appeal, it has to face two prerequisites, which are expected to dissuade the bringing of claims with manifestly weak foundations:

1. the appellate court arraignment shall be conducted in a more schematic and easily understandable way in order to allow the judge to pinpoint immediately the sections of the first decision that require modification and identify how this modification should take place. These changes will not be granted and the first decision confirmed if the appeal does not alter the final result;

2. moreover, at the first hearing, the Court can decide to waive a claim where the appeal does not have a reasonable chance of being accepted by the Court. This decision cannot be appealed therefore, in such cases, the losing party can only appeal the first decision directly before the Supreme Court of Cassation.

*             *             *

All these measures introduce further innovations to the Italian civil procedure and will contribute to a reduction in the backlog of Tribunals and, consequently, decrease the time needed to obtain a final decision from the Judge. Therefore, a new era for Italian Civil Procedural Law is perhaps on its way since, in only a few years’ time, the effect of the reforms will be more visible to both domestic and international investors, and the Italian court system will most likely cease to be perceived as a risk factor in doing business in Italy.

 

    [1] Data related to average duration of civil proceedings refers to year 2013.

Articolo inserito in: Contenzioso