Starting Litigation in Italy: A Guide for International Clients
If you are an international client looking to start litigation in Italy, it is important to understand the Italian legal system and the role of a litigation attorney in Italy. In this article, we will discuss some key factors involved in starting a civil dispute in Italy and how to find a qualified litigation attorney in Italy.
The laws that govern litigation in Italy
Civil litigation is governed by the civil procedure regulations outlined in the 1940 Code of Civil Procedure.
In the case of specific types of cases, there is a distinct law that builds on the Code of Civil Procedure. The Consumers’ Code, which governs class actions, is one example.
The Code of Civil Procedure governs all proceedings involving civil affairs. There are no practise directives in Italy that relate to specific types of actions, such as those involving bodily harm, etc. However, the Code of Civil Procedure provides for simplified proceedings for money claims and establishes particular regulations for family proceedings, probate issues, and so on.
If you are considering starting litigation in Italy, the first step you need to take is to identify the appropriate court, depending on the type of litigation.
For example, the civil courts of first instance are organised as follows: “Giudici di Pace” hear small claims, while First Instance Tribunals hear claims for more than $5,000 (save for property disputes and personal injury claims, which are heard by Giudice di Pace), with no upper limit on value.
Each tribunal contains at least one civil section and at least one criminal section. Milan, for example, has 15 highly specialised divisions.
The 26 appellate courts in Italy are generally located in each of the 20 regional capitals, with some bigger regions having more than one, and have authority over the courts of first instance in their district.
The Court of Cassation in Rome is the highest court. Its objective is to ensure the strict observance and uniform interpretation of the law by the lower courts. As a result, an appellate court decision can only be appealed to the Court of Cassation if the lower court either misread the law or correctly comprehended it but applied it incorrectly to a real-life scenario. The Court of Cassation cannot review the decision of a lower court on its facts.
Legal framework: The implications of the Italian system of jurisprudence on litigation
At the constitutional level, the idea of separation of legislative, executive, and judicial authorities informs the Italian legal system. The creation of new legislation is the responsibility of Parliament, while the government has minimal legislative authority. That means that courts of law cannot make new laws; their sole function is to interpret and apply existing laws. Other judges are not bound by the decisions of one judge.
The Civil Code of Italy contains all of the laws governing agency, contract, tort, unjust enrichment, and quasi-contracts, as well as commercial, corporation, property, family, and succession law. While the Civil Code is a very comprehensive and thorough regulation, it is nevertheless up to the courts to interpret its provisions and apply them to real-life issues within their jurisdiction.
As a result, earlier judgements and the logical reasons behind them are taken into account by Italian courts. The weight of a precedent is determined mostly by the position of the ruling court in the Italian court hierarchy.
The fundamental advantage of the Italian system is that the breadth and depth of codified law leave less room for judicial interpretation.
On the other hand, because Italian judges are not constrained by judicial precedent, they have the discretion to issue decisions that contradict both conventional jurisprudence and doctrine without fear of repercussions in terms of career promotion or equivalent. This causes and increases the randomness and unpredictability of events.
When it comes to the formalities that must be performed before beginning a lawsuit, Italian law is not prescriptive.
In order to seek legal redress for a repudiatory breach of contract, the performing party must provide the opposing party with “reasonable notice” in writing; in practice, 15 days is usually sufficient notice.
That is a substantive law need, not a procedural one, but it is nonetheless important in practice.
Parties in the early stages of a judicial action concerning one of the following issues must attempt a “mediation procedure“: property rights in real estate; family law agreements; leases and permissions to occupy property for free; commercial leases; Medical malpractice lawyer Italy liability; defamation; insurance contracts; and joint ownership of apartment complexes.
The procedures will be halted if neither party attends the initial exploratory mediation meeting. If one of the parties refuses to participate in the mediation, the court will consider this behavior while adjudicating the claim. The court will take the party’s failure to appear as evidence against it.
Issues concerning the initiation of litigation in Italy
The lengthy time it takes to get a first-instance judgement is possibly the single most disadvantageous characteristic of filing actions in Italy.
Another disadvantage of litigating in Italy is the courts’ proclivity to “sit on the fence” when it comes to allocating legal costs. This deters the prospective loser from settling.
One advantage of litigating in Italy is that the legal fees are very modest, especially when compared to other common law jurisdictions. This alleviates several of the concerns raised above.
However, the fact that legal fees are limited relieves further pressure on a defendant who is focused on wasting time or being difficult, generally by initiating spurious counterclaims. Only when the frivolity of the counterclaim is obvious does the defendant risk being obliged to pay the opposing party’s legal fees.
Limitation periods in Italian law
Limitation periods differ based on the right being exercised. The Civil Code establishes varying limitation periods for various categories of rights; nonetheless, the basic limitation time is ten years. For monetary claims, for example, this is the limitation period.
Certain categories of claims have shorter limitation periods, including:
– Five years for tort claims (unless the tort is a criminal offence, in which case the limitation period is the same as that for bringing the prosecution);
– Five years for corporate disputes;
– Five years for claims for the recovery of statutory interest due on a sum and claims for salaries that must be paid annually;
– Two years for insurance claims;
– One year for shipping claims.
The restriction period is as follows: from the day the applicable right can be exercised; alternatively, in the case of tortious claims, from the time the injured party becomes aware of the damage and who is accountable for it.
Interim remedies in Italy
In Italy, interim remedies are available.
A party may seek in court the seizure of assets that are the subject of the dispute on the grounds that the assets may be lost or lose their value while the procedures are pending. The petitioner must demonstrate that such a danger exists.
A party may also apply for the seizure of the defendant’s assets or an injunction to take or refrain from taking certain actions, such as ordering a party to: comply immediately with a contractual obligation or restore the status quo; or refrain from a certain act or behaviour.
The court will grant this type of application after determining, through a summary procedure, that the applicant has a prima facie case and that what the applicant hoped to achieve through the main action would be irreparably harmed if the respondent’s situation was allowed to deteriorate by not granting the remedy.
An interim remedy with the assistance of foreign proceedings may also be sought from an Italian court. The seizure of the defendant’s assets in Italy is a typical example of this. The application will be heard at the court where the asset is located. If the remedy is granted and the defendant later loses the lawsuit, the seizure will be counted as a writ of foreclosure, which is a preliminary stage in the enforcement process.
Starting litigation in Italy can be a complex process, but with the help of a qualified litigation attorney, you can navigate the Italian legal system and protect your rights. When looking for a Litigation lawyer in Italy, be sure to choose an experienced and qualified lawyer who can represent you.