Italy: Litigation Dispute Resolution Comparative Guide

1 Legal framework

1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?

At the constitutional level, the Italian legal system is informed by the principle of separation between the legislative, executive and judicial powers. The creation of new law is reserved to Parliament. The government can legislate in limited circumstances. Courts of law cannot create new law: their role is solely to interpret and apply statutory law. Judgments are not binding on other judges.

Italian law on agency, contract, tort, unjust enrichment and quasi-contracts as well , commercial, company, property, family and succession law are all contained in a single statutory instrument called the Civil Code. While the Civil Code is a very comprehensive and detailed statute, the courts are still relied upon to interpret its provisions and apply them to the real-life cases within their purview.

Hence, prior judgments and the legal reasoning that underpins them are taken into due account by Italian courts. How much authority a precedent carries depends primarily on where the deciding court stands in the hierarchy of Italian courts.

Aside from the hierarchical standing of the court that made the decision, other factors that inform the authoritativeness of a precedent include:

• the recentness of the judgment – both in absolute terms and by reference to how close in time the previous reported decisions on a similar cases are; and
• the prestige of the court that handed it down. A recent judgment from, say, one of the specialised sections of the Milan Tribunal undoubtedly carries more weight than a much older decision from the single unspecialised civil section of a tribunal in one of the peripheral parts of Italy.

Rather more obviously, similar judgments reinforce one another; whereas an isolated outlier is, by its nature, less authoritative.

In terms of predictability of outcome, the Italian system and common law systems such as the English system are broadly equivalent. The main advantage of the Italian system is that the extent and detail of codified law leave less room for interpretation by judges. The main advantage of the English system is that – unlike with the Italian decentralised court system (see question 2) – all high-value or complex cases are dealt with centrally by the High Court in London, which affords an unparalleled mix of commercial mindedness and depth of legal knowledge. Suffice to say that in Italy, a case worth billions of euros can be heard in the court of a small provincial capital (a town with few tens of thousands of inhabitants) which has territorial jurisdiction for it (see question 4.2). In terms of obtaining ground-breaking judgments, the English system is superior due to the courts' ability:

• to create substantive law without being constrained by a comprehensive body of statutory law; and
• to resort to equity.

Then again, the fact that Italian judges are not bound by judicial precedent affords them the freedom to arrive at judgments that go against both prevailing jurisprudence and doctrine without fear of adverse consequences in terms of career advancement or similar. This creates and increases the unpredictability and randomness of outcomes.

1.2 What rules govern litigation in your jurisdiction?

Civil litigation is governed by the civil procedure rules set out in the Code of Civil Procedure which came into force in 1940.

There is separate legislation that builds on the Code of Civil Procedure in respect of certain kinds of proceedings. One example is the Consumers' Code, which sets out the rules for class actions (see question 4.3).

1.3 Do any special regimes apply to specific claims?

The Code of Civil Procedure applies to all kinds of proceedings that relate to civil matters.

Unlike in England, in Italy there are no such things as practice directions that apply to specific kinds of actions such as those relating to personal injury, etc.

That said, the Code of Civil Procedure provides for streamlined proceedings for money claims and sets out specific rules that apply to family proceedings, probate disputes and so on.

Hence, an action relating to, say, a breach of contract is not brought in the same way as separation proceedings. On the other hand, however, an action for breach of contract is brought in exactly the same way as an action for personal injury.

Proceedings brought before justices of the peace (the lower courts of first instance – see question 2.1) are streamlined compared to those brought before the tribunals. Justices of the peace can adjudicate:

• certain disputes relating to property (eg, boundaries, noise);
• disputes relating to goods up to the value of €5,000 (increasing to €30,000 on 1 November 2025); and
• personal injury cases relating to road accidents up to the value of €20,000 (increasing to €50,000 on 1 November 2025).

1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?

Through its membership of the European Union, Italy is a member of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007 (Lugano Convention).

Italy is also a signatory in its own right to:

• the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations diplomatic conference that took place on 10 June 1958 (New York Convention); and
• the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters adopted in The Hague, on 15 November 1965 (The Hauge Convention).

The Lugano Convention, the New York Convention and the Hague Convention are the principal multilateral instruments that have relevance in Italy when it comes to civil litigation connected with foreign jurisdictions that are not EU member states.

Italy also has a number of bilateral agreements with individual nations (eg, the United Kingdom, Canada, Australia, New Zealand, Japan, China, Singapore, Turkey and Ukraine) that deal with jurisdiction and enforcement of judgments in civil matters as well as service of process. Several of these bilateral agreement pre-date the multilateral instruments referred to above and have therefore been superseded by them.

As far as EU member states are concerned, the principal instruments that apply in Italy are:

• Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I);
• Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II);
• Regulation (EU) 1259/2010 on the law applicable to divorce and legal separation (Rome III);
• Regulation (EU) 1215/2012 concerning jurisdiction, recognition and enforcement of decisions in civil and commercial matters, recast to provide for the abolition of 'exequatur' for all judicial decisions in civil and commercial matters (Brussels I recast);
• Regulation (EC) 2201/2003 relating to jurisdiction, recognition and enforcement of decisions in matrimonial and parental matters (Brussels II recast);
• Regulation 1896/2006, which introduced the European injunction; and
• Regulation (EU) 655/2014 of the European Parliament and of the Council, of 15 May 2014, establishing a procedure for the European Preservation Order on bank accounts in order to facilitate the cross-border recovery of claims in civil and commercial matters.

2 Judicial structure

2.1 What courts exist in your jurisdiction and how are they structured?

The courts of first instance dealing with civil matters are:

• 2,369 justices of the peace, which adjudicate small claims (see question 1.3); and
• 165 tribunals dealing with claims worth more than €5,000 (other than property disputes and personal injury claims reserved for the justices of the peace), with no upper limit of value.

There are several justices of the peace in each tribunal and they also have jurisdiction over minor criminal matters and administrative violations.

Each tribunal has one more civil sections and one or more criminal sections. Milan has, for example, 15 sections that are very specialised.

The 26 appellate courts are broadly located in each of the 20 regional capitals in Italy – with some larger regions having more than one – and have jurisdiction over the courts of first instance located in their district (see question 9).

The highest court is the Court of Cassation in Rome. Its purpose is to guarantee the exact observance and uniform interpretation of the law by the lower judicatures. Hence, a decision of an appellate court can only be appealed to the Court of Cassation on the grounds that the lower court either misinterpreted the law or interpreted it correctly but wrongly applied it to a real-life case. The Court of Cassation cannot look at the factual merits of a lower court's decision.

If the Court of Cassation can make a decision without there being a need to establish facts, it will do so and the judgment as a whole (including on the merits) will be final. If facts need to be established, the Court of Cassation will refer the case to the lower court with jurisdiction (but to a different judge within that court), setting out in the referral what the lower court needs to rectify.

The Court of Cassation can also invalidate judgments of the lower judicature on the basis that the latter lacked jurisdiction or breached other fundamental procedural rules.

2.2 What specialist courts or tribunals exist in your jurisdiction?

Redress towards entities acting in the capacity of public law bodies, as opposed to under private law (broadly the equivalent of judicial review in the English system) can be sought in administrative courts that are separate from the civil courts.

In addition to civil courts and administrative courts – and, obviously, separate courts that deal with criminal matters – there are special courts for tax, military, sport, religious matters and so on.

3 Pre-litigation

3.1 What formalities apply before litigation can be commenced in your jurisdiction?

Italian law is not prescriptive when it comes to the formalities that should be followed before commencing litigation.

The Civil Code provides that, in order to seek judicial remedy for a repudiatory breach of contract, the performing party must give the other party 'reasonable notice' in writing; in practice, 15 days are deemed to constitute sufficient notice.

That is a substantive law requirement, not a procedural one; but it is still relevant from a practical standpoint.

3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?

No, there are no pre-action protocols and similar rules, whether statutory or set by a court, that prescribe certain actions by parties that are about to engage in litigation.

However, parties involved in a dispute relating to agriculture or telecommunications must attempt mediation prior to seizing a court of the dispute. If they fail to do so, the action will be declared inadmissible by the court.

On a separate but related note (as it does not relate to the pre-action phase), parties in the early stages of a court action in connection with of the following subject matter must attempt mediation:

• property rights in relation to real estate;
• agreements relating to family law matters;
• leases and licences to occupy property for free;
• leases of businesses;
• medical liability;
• defamation;
• insurance contracts; and
• joint ownership of apartment blocks.

If both parties fail to take part in the initial exploratory mediation meeting, the proceedings will stall.

If one of the parties refuses to take part in the mediation, the court will take such behaviour into account for the purpose of adjudicating the claim. The court will consider the party's failure to show up as tantamount to evidence against it.

If both parties take part in the mediation meeting and the meditation is unsuccessful, the court can consider whether the parties engaged in the process in a constructive fashion; if a party fails to do so, the court can take this into account for the purpose of apportioning costs.

If a claim relating to the payment of less than €50,000 or a claim relating to road accidents or similar is brought and no mediation is prescribed, the parties to the claim must attempt to resolve the dispute by way of assisted negotiation, whereby the lawyers representing the two parties engage with each other with a view to reaching a settlement.

If a party fails to engage in the assisted negotiation, the court will take the party's behaviour into account for the purpose of apportioning costs and can also impose an extra penalty.

3.3 What other factors should a party consider before commencing litigation in your jurisdiction?

The considerable length of time that it takes to obtain a first instance judgment is perhaps the single most negative aspect of bringing proceedings in Italy.

Another negative aspect is the absence of disclosure, which prevents a party from making an informed decision early on in the proceedings on whether to pursue an out-of-court settlement. Generally speaking, the Italian legal system does not incentivise enough out-of-court settlements by way of mechanisms such as the Civil Procedure Rules Part 36 offer under English law.

A further drawback of litigating in Italy is the courts' tendency to 'sit on the fence' when it comes to apportioning legal costs (see question 11). This disincentivises the likely loser from settling.

The absence of interim remedies, specifically in legal costs and generally, is a further consideration for a plaintiff that approaches Italian litigation with an English law mindset.

One positive aspect of litigating in Italy is that the legal costs are relatively low, particularly by comparison with common law jurisdictions. This in many ways alleviates the concerns outlined above.

Then again, the fact that legal costs are contained takes further pressure away from a defendant which is intent on wasting time or being otherwise difficult, typically by bringing frivolous counterclaims. It is only when the frivolousness of the counterclaim is blatant that the defendant risks being ordered to the other party's legal costs.

4 Commencing litigation

4.1 What rules on limitations periods apply in your jurisdiction?

Limitation periods vary depending on the right that is being actioned. The Civil Code sets out different limitation periods for different categories of rights; but generally speaking, the limitation period is 10 years. This is the limitation period that applies to monetary claims, for example.

Shorter limitation periods apply to specific types of claims – namely:

• five years for claims arising in tort (unless the tort is a criminal offence, in which case the limitation period is the same as that to bring the prosecution);
• five years for claims related to corporate disputes;
• five years for claims for the recovery of statutory interest due on a sum and claims related to salaries that must be paid annually;
• two years for claims related to insurance matters; and
• one year for claims related to shipping matters.

The limitation period runs:

• from the date on which the relevant right can be exercised; or
• in the case of tortious claims, from the moment the injured party is in a position to know about the damage and who is responsible for it.

The limitation periods and the way they are calculated cannot be derogated from contractually.

The limitation period stops running when the party that seeks to rely on it is served with either a written notice asking for the fulfilment of its obligation or a court summons.

4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?

The rules that determine whether the Italian courts, as opposed to foreign courts, have jurisdiction over civil matters are set out in:

• Law 218/1995;
• Regulation (EU) 1215/2012 concerning jurisdiction, recognition and enforcement of decisions in civil and commercial matters;
• Regulation (EC) 2201/2003 relating to jurisdiction, recognition and enforcement of decisions in matrimonial and parental matters ('Brussels IIbis'); and
• bilateral treaties with individual countries.

The EU regulations apply vis-à-vis EU member states; whereas for non-EU member states – including England and Wales post Brexit – the applicable law is Law 218/1995, unless a bilateral treaty was entered into after 1995 (this is not the case for England and Wales).

The rules that determine which court in Italy can be seized of proceedings are informed by three criteria:

• the subject matter of the claim;
• the value of the claim; and
• the territorial connection of the claim with the court.

As mentioned in question 2.1, a case is allocated to one of the two types of court of first instance:

• the justices of the peace, which deal with smaller claims; and
• the tribunals, which deal with more important claims in accordance with a mix of criteria that relate to both the subject matter of the dispute and its value.

A tribunal can be seized of all disputes worth more that €5,000 except for those that are subject to the jurisdiction of the justices of the peace (see question 1.3).

When it comes to determining which of the 107-plus tribunals or justices of the peace scattered throughout Italy has jurisdiction, one relies on the factor that connects the case with the court district. The general rule is that of the forum of the defendant. In the case of individuals, this is the place where the person lives or works. In the case of companies, it is the registered address.

Notably, however, for disputes relating to the enforcement of an obligation arising by force of contract or law, there is concurrent jurisdiction of the court where the obligation has arisen or must be performed. In the case of tortious claims, the court with jurisdiction is that of the place where the event arose. However, in the case of road accidents one reverts to the general rule of the forum of the defendant. For claims relating to property rights the exclusive jurisdiction is that of the court where the real estate is located. Probate disputes must be brought in front of the judge of the place where the probate was applied for. Enforcement actions are to be brought in front of the judge of the place where the asset is located, with the exception of the seizing of motor vehicles and, importantly, third-party enforcement, which is decided upon by the court of the debtor's residence.

4.3 Are class actions permitted in your jurisdiction?

Article 140-bis of the Consumers' Code originally introduced in the Italian legal system class actions in the narrow sense – namely a mechanism whereby individual consumers can 'opt in' to actions brought by an individual customer or associations of consumers in respect of damages arising from:

• unfair or anti-competitive commercial practices;
• defective products; and
• breach of obligations that the producer/provider has in respect of all its customers (not specific terms that apply only to an individual customer)

This kind of class action is now enshrined in Articles 840-bis et seq of the Code of Civil Procedure, which specify that the opt-in can be done by the individual consumer either while the proceedings are pending or after the judgment on the merits (ie, not the actual financial award) has been handed down.

4.4 What are the formal requirements for commencing litigation?

As per questions 3.1 and 3.2, there are no formal requirements prior to starting litigation.

The steps that are needed to start proceedings are set out in question 7.4.

4.5 What are the procedural and substantive requirements for commencing litigation?

There are no specific requirements in the pre-litigation phase (see question 3).

4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?

A party may apply to the court for the seizure of assets that are the subject matter of the dispute on the grounds that, while the proceedings are pending, the assets may be lost or lose their value. The applicant must prove that there is such a risk. The risk is not necessarily dependent on the other party – for example, the seizure may be in respect a real estate asset that is at risk of imminent collapse.

A party may also apply for:

• the seizure of assets of the defendant (or in the case of a counterclaim, of the claimant); or
• an injunction to undertake or abstain from undertaking certain actions – for example, ordering a party to:
• • comply immediately with a contractual obligation or to restore the status quo; or
  • refrain from a certain act or behaviour.
• The court will grant this type of application after having established, through a summary procedure, that:
• • the applicant has a prima facie case; and
  • what the applicant set out to achieve through the main action would be irreparably frustrated if the respondent's situation (in terms of assets it has available) were allowed to deteriorate by not granting the remedy.

In Italy, the application to obtain an interim remedy is always served by the court on both parties. There is thus no concept of ex parte applications. The respondent will always be given the chance to defend the application at the hearing. The only exception to this rule is the application for an injunctive decree (decreto ingiuntivo), which is not an interim remedy but a specific kind of legal proceedings for certain kinds of money claims (see question 7.4).

If the respondent does not show up at the hearing, the court may grant the remedy nevertheless. After it has done so, the court will summon the parties to a hearing; and the applicant will be ordered to serve on the respondent a statement of case in support of the request and the respondent will be entitled to file a defence or plead it during the hearing.

It is possible to apply to an Italian court for an interim measure in aid of foreign proceedings. The typical example of this is the seizure of the defendant's assets located in Italy. The court at the place where the asset is located will hear the application. If the remedy is granted and the defendant subsequently loses the case, the seizure will count as atto di pignoramento (writ of foreclosure) which is an advanced step in the enforcement proceedings (see question 10.1).

As these interim remedies are granted prima facie, there is a risk of them being unduly granted by the court. It is therefore in the court's gift to make the grant of the application conditional upon the applicant paying to the court a security in respect of the duty to indemnify the loss caused to the respondent by unduly seeking the interim remedy.

A party can also apply to court on an interim and urgent basis so that it brings forward the acquisition of evidence. In particular, a party may ask the court:

• to cross-examine witnesses who can only testify in the very near future; or
• to appoint and instruct an expert to carry out a report on property that is undergoing change with the passing of time (eg, perishable goods that are the subject matter of a contractual dispute) or that may be lost altogether (a damaged building at risk of total collapse).

Where the standard interim remedies referred to above are either not available or adequate, it is possible to seek urgent precautionary measures pursuant to Article 700 of the Code of Civil Procedure aimed at provisionally preserving the effects of the final remedy sought through the main claim. The law does not specify any particular form of remedy. The party requesting it is free to specify this; and it at the court's discretion to adapt the remedy before granting it.

4.7 Under what circumstances must security for costs be provided?

There is no such thing as security for costs in Italian civil proceedings.

5 Disclosure

5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?

There is no such thing as disclosure in Italian civil proceedings.

Each party can submit documents and other materials as evidence as early as at the start the proceedings (as attachments to the writ of summons or to the defence), or later in the proceedings.

Importantly, there is no duty to disclose known adverse documents to the other party.

5.2 What rules on third-party disclosure apply in your jurisdiction?

If a party to civil proceedings knows of specific evidence that is in the possession of the other party or a third party, the first party can apply to the court to obtain an order that compels the other party or third party to make that evidence available to the court. The court will grant the application if:

• the request is sufficiently specific (ie, there is no scope for 'fishing expeditions'); and
• the requesting party has made attempts to source that evidence itself before applying to the court.

5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?

In Italian law, there is no equivalent of privilege as this is understood in common law jurisdictions.

There is, however, a strict duty of confidentiality – more precisely, professional secrecy – of avvocati (namely lawyers who are enrolled with the local Law Society as practising solicitors) towards their clients, which prevents avvocati from actually disclosing information that they acquire while assisting a client. To this duty corresponds a right not to be compelled to disclose such information to anyone, including a court.

The code of conduct that applies nationwide to practising lawyers expressly forbids submitting as evidence in proceedings:

• correspondence between lawyers that is marked as confidential; and
• communications between lawyers concerning out-of-court settlements.

Notably, however, information disclosed by a lawyer in breach of either the general confidentiality obligation or the specific confidentiality obligations referred to above is admissible as evidence in proceedings.

In-house lawyers who are enrolled with the local Law Society are subject to the same rules as avvocati. Accordingly, the protection that is afforded to their communications does not come anywhere close to privilege as it is intended, for example, in the United States.

5.4 How have technological advances affected the disclosure process in your jurisdiction?

This question is not applicable, as there is no disclosure process in Italian proceedings.

As an aside, Italy is rather advanced in areas such as electronic certification of signatures and digital identification generally, as well as in certified emails.

Italy has adopted the certified electronic email ( Posta Elettronica Certificata or PEC), which is an enhanced internet protocol for sending emails from dedicated and identifiable accounts. Under Italian law, a PEC is tantamount to a letter sent by registered mail. This means that certain legal documents can be served by PEC.

In 2014, Italy rolled out the digitalisation of civil proceedings. For each civil proceeding, there is a digital repository of all documents that have been submitted by the parties and issued by the judge or his or her agents (eg, experts), which can be accessed by the parties' lawyers.

All documents can be filed with the court electronically via a dedicated system (not ordinary email).

5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?

One important consideration stems from the fact that there is no duty to disclosure known adverse document.

Once evidence has been submitted, it cannot be taken back. This means that evidence that plays into the hands of the other party can be used against the party that submitted it.

Thus, the parties to Italian proceedings should be careful when it comes to identifying what evidence is worth submitting.

6 Evidence

6.1 What types of evidence are permissible in your jurisdiction?

Documentary evidence is permitted in the form of written documents, photos and other printable media, despite the fact that all evidence is filed with the court electronically.

It is possible to submit as evidence transcripts of audio or video recordings, even where those recordings were made without prior warning.

Aside from expert reports, written statements are ordinarily not relied upon as evidence. As a general rule, witnesses give oral evidence before the court during a hearing. The witnesses give answers to specific questions that have been set out by the parties in their requests to the court to admit evidence and have then been approved by the court (see question 7.4). A party can formulate questions for its own witness or the other party's witnesses.

Lawyers cannot cross-examine witnesses directly. They can only interact with them through the judge sitting at the hearing.

Witnesses cannot be coached because lawyers are prevented from engaging in conversations with them.

It is possible to ask the court to allow the submission of written statements from witnesses or third parties who have relevant evidence to contribute to the proceedings. This constitutes 'atypical evidence', which the judge has full discretion to allow or not. If allowed by the judge, the written statement must:

• be in the form of an affidavit sworn before a notary public or, in the United Kingdom, a solicitor; and
• potentially be apostilled.

6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?

The court can appoint one or more experts, whose task is to answer specific questions on technical issues raised by parties or by the court, while also taking into account suggestions and objections from the parties.

Experts must be independent and impartial, and are ordinarily selected by the judge from an official list that is published by the local chamber of commerce. They are accountable only to the court.

The parties can appoint their own experts, whose task is to interact with the court-appointed expert throughout the technical investigation and to challenge his or her findings where appropriate.

The fees of the court-appointed expert are finally apportioned by the court between the parties at the end of the proceedings. In the interim, the costs of the expert are usually split between the parties.

The losing party is ordinarily ordered to pay the entirety or the majority of the costs. However, the court will split the costs between the parties where it deems it reasonable to do so.

6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?

A plaintiff seeking to rely on written witness statements as a main source of evidence should think twice, as this form of evidence is not admissible in Italy as a general rule.

The Italian courts will normally expect that all written evidence in a foreign language is translated into Italian; but in practice, they do not make an issue of, say, short emails written in English being submitted as evidence, as long as elsewhere in the written submissions (in Italian) it is explained what the correspondence says.

7 Court proceedings

7.1 What case management powers do the courts have in your jurisdiction?

Italian judges have very limited discretion when it comes to managing proceedings. There is no case management hearing in Italian civil proceedings.

This is due to the fact that there is little scope to depart from the extremely comprehensive and detailed rules set out in the Code of Civil Procedure. There is no decision to be made as to whether a claim should be allocated to the fast track because the criteria for allocation to a specific court are again very detailed and cannot be derogated from (see question 4.2), except by agreement between the parties in limited circumstances. From a systemic point of view, there is no need (or rather, perceived need) for the court to set a timetable for the case. The parties and the court simply adhere to the deadlines set forth in the Code of Civil Procedure.

Despite having limited discretion in managing the case, Italian courts have some degree of freedom in deciding on the admissibility of the evidence put forward by the parties. In specific limited circumstances the court can use its initiative, for example, to summon witnesses that neither party has put forward as part of its evidence.

The court also has discretion when it comes to:

• admitting so-called 'atypical evidence' (see question 6.1); and
• granting interim remedies (see question 4.2).

Furthermore, in the early stages of the proceedings, the court can encourage the parties to settle the dispute and can order that the parties pursue mediation.

7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

Italian civil proceedings are generally private. Members of the general public cannot attend the preliminary phase of the proceedings, which is presided upon by an individual judge. However, court papers are not a matter of public record and a party can request that documents that are particularly sensitive be stored in particular ways that afford absolute confidentiality.

7.3 How is the applicable law determined? What happens in the event of a conflict of laws?

Where a conflict arises in relation to the law of a non-EU member state, the applicable law is generally determined in accordance with Law 218/1995.

By contrast, any conflict between Italian law and the law of an EU member state is resolved by:

• Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I);
• Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II); and
• Regulation (EU) 1259/2010 on the law applicable to divorce and legal separation (Rome III).

Law 218/1995 is fundamentally in line with the EU rules. Tortious claims are governed by the law of the place where the event took place and so on. Notably, however, when it comes to contractual obligations, Article 57 of Law 218/1995 makes reference to the Rome Convention signed by EU member states in 1980. This instrument was later replaced, as between EU member states, by Rome I. Both the Rome Convention of 1980 and Rome I look at the law chosen by the parties to the contract as applicable law, but also provide for all-important fallback rules in case of no express choice by the parties.

Regulation (EC) 593/2008 ceased to apply in the United Kingdom as of 31 January 2020 and in March 2019 the United Kingdom transposed its provisions into domestic law. This unilateral act by the United Kingdom does not mean that either the Rome Convention of 1980 or Rome I is restored as between Italy and the United Kingdom. Hence, from the Italian 'internal perspective', it is not clear what the conflict of laws rules are in relation to contractual obligations connected to both Italy and the United Kingdom.

By virtue of specific statutory provisions, Italian law prevails in relation to labour disputes, bills of exchange, antitrust issues and so on, which reserve the jurisdiction of the Italian courts.

Articles 29 and 30 of Law 218/1995 provides that marriages and the dissolution thereof – including financial matters - are governed by the common national law of the spouses and, absent that, by the law of the place where the matrimonial life is prevalently located.

The applicability of foreign law can be raised either by the court on its own initiative or by the parties.

The Italian court will apply the foreign law where it is necessary to do so; however, the Italian court will not apply foreign law if this would be contrary to public order in Italy. This means that if the foreign law contravenes key principles of Italian law (eg, equality between genders, prohibition of polygamy), the Italian court must ignore it and apply Italian law instead.

7.4 What rules apply to the joinder of third parties?

There are two separate mechanisms whereby third parties can be joined to the proceedings.

The first is the riunione di procedimenti – that is, the joinder of two or more proceedings that are pending before the same court and that are connected. The second is the intervento ('intervention') of a third party in existing proceedings.

The riunione di procedimenti is granted by the court on the request of a party or ordered on its own initiative where the proceedings are connected with one another. The connection must concern:

• the identity of the parties (ie, the same two parties have two concurrent proceedings on separate matters in front of the same court);
• the two proceedings having the same petitum – namely, the subject matter of the claim intended as the remedy sought through it; or
• the two proceedings having the same causa petendi – namely, the subject matter of the claim intended as the reasons in law why a certain remedy is sought.

The intervento can happen either:

• on the initiative of a third party that has an actionable claim against one or both parties to the existing proceedings, where either:
• • such claim is either the exact same petitum of the existing proceedings (eg, the third party seeks to stop noise pollution coming from the property of the defendant, which is exactly what is being sought by the original plaintiff); or
  • the actionable claim is not the same but is connected with what is being already litigated (eg, the third party seeks monetary compensation from the noisy neighbour instead);
• on the initiative of a party to the existing proceedings, if that party deems the third party to have an interest in the proceedings along the lines of the preceding point; or
• on the initiative of the court, where it deems this appropriate in the circumstances illustrated above.

7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?

Civil proceedings can be commenced either by serving upon the defendant the writ of summons (atto di citazione)or by filing with the court an application (ricorso), which the court then serves upon the defendant. The ricorso is used, for example, to start separation proceedings which in Italy are a necessary step in order to obtain a divorce in a contentious situation.

In this Q&A, we focus on ordinary proceedings that are started by way of a writ of summons.

After serving the writ of summons, the plaintiff goes on onto to lodge it with the court, thereby registering its formal entry of appearance.

The writ of summons must set out:

• the court that is seized of the proceedings;
• the names and contact details of the claimant and defendant;
• a description of the facts that underlie the claim;
• the legal grounds that underpin the claim;
• the subject matter of the claim, intended as the remedy that is sought through it;
• the evidence submitted (without precluding the submission of further evidence); and
• the date of the first hearing (which must be no later than 90 days – or 150 days if the defendant is served abroad – from service of the writ of summons, with the possibility that the court can add a further 45 days if it finds that it cannot accommodate the first hearing on the date stated in the writ of summons).

The defendant must make an entry of appearance and file a statement of defence at the latest 20 days prior to the date of the first hearing. Any counterclaim must be included in this initial statement; otherwise, it is forfeited. If an entry of appearance is entered into during this 20-day period, not only can a counterclaim not be raised, but that defendant also loses the right to join a third party to the proceedings and to raise any procedural exception that the court cannot raise on its own initiative.

At the first hearing, the court verifies the appearance of the parties. If the defendant has failed to make an entry of appearance, the court will not immediately declare the absence of the party, but will make enquiries as to whether the writ of summons was served in accordance with correct procedure. If that is established, the proceedings will formally go ahead in the absence of the defendant. This does not mean that the defendant cannot participate in the proceedings at a later stage; however, the defendant is precluded from making submissions if the deadlines for them have expired during its absence.

Importantly, there is no such thing as a default judgment in Italy. The court will decide the claim on its merits having gone through the phases of the proceedings set out below, to the extent possible. Clearly, the fact that the court will hear only the claimant's arguments makes it likely that it will judge in the claimant's favour, but this is not a foregone conclusion.

If so requested by the parties during the hearing, the court will grant them the following deadlines:

• 30 days to file a brief clarifying or modifying the claim or the defence, including the procedural objections raised in them;
• a further 30 days (ie, from the expiry of the first deadline above) to file a brief that counters the other party's brief and puts forward new exceptions and to submit documentary evidence and indicate what other evidence it wants to be formed before the court (see question 6); and
• a further 20 days to file a brief setting out further evidence that is needed in order to confute the evidence that has been put forward by the other party.

This marks the beginning of the so-called 'fase istruttoria' – the phase dedicated to the gathering of evidence and its assessment by the court.

Once the above deadlines have expired, the court will schedule a new hearing to discuss the admissibility of the parties' requests concerning evidence. At the end of this hearing, the court will order that the evidence it has admitted be collected. Alternatively, if the court considers that it has already seen enough evidence, it can refer the case for decision without proceeding with the collection of evidence.

The actual gathering of the evidence (eg, the cross-examination of witnesses) happens at a subsequent hearing.

Once it has collected all the evidence, the court will refer the case for a decision. The parties must submit their closing arguments by:

• filing a first brief generally within 60 days – which can be reduced by the court to 20 days – that effectively contains a summary of the proceedings from the party's point of view, including the definitive request of the remedy sought (to the extent that anything is omitted, this omission is tantamount to a forfeiture); and
• filing a second brief generally within the next 20 days in response to the other party's brief.

With the exception of the initial writ of summons and the statement defence, which can also be filed physically with the court, all briefs and connected documentation (eg, evidence) are filed electronically (see question 5.4).

Article 702bis of the Code of Civil Procedure has introduced abridged proceedings in cases where there is written evidence in support of the claim.

Notably, money claims which are supported by written evidence are brought through a ricorso for the obtainment of a decreto ingiuntivo (injunctive decree). The court will reach its decision without the ricorso having been served on the defendant. If the injunctive decree is granted, the plaintiff will serve it on the defendant, which will have 40 days to pay (shortened to 10 days for certain kinds of debts) to comply with the request. During this 40-day period, the defendant can file an opposition to the injunctive decree, in which case ordinary proceedings are opened. The court can nevertheless order that the injunctive decree is provisionally enforceable pending proceedings; and can require the claimant to put down with the court security for the amount of the debt that is being enforced.

7.6 What is the typical timeframe for the court proceedings?

A judgment is usually rendered six months after the case is referred for a decision by that court.

The length of time from the commencement of proceedings to referral of the case for a decision varies significantly from court to court. The evidence-gathering phase alone takes between three and nine months – and sometimes longer if many witnesses must be cross-examined or other complex evidence must be heard in court.

It is probably fair to say that a relatively complex claim takes a minimum of two years to be adjudicated.

8 Judgment and remedies

8.1 What types of judgments, orders and other remedies are available in your jurisdiction?

There are three categories of judgments:

• declaratory judgments, which merely ascertain the legal reality of matters. The most common example of this is a judgment that rejects a claim in its entirety or a judgment that declares a legal status (eg, that someone is the owner of a chattel);
• constitutional judgments, which – having ascertained the legal reality of circumstances – also create, modify or extinguish a legal right or legal relationship (eg, that a contract has been terminated due to breach and that the parties can simply walk away from the contract and each other without consequence); and
• condemnation judgments , which is one of the above two types of judgment with the added element of an order to the losing party to give or do something, or refrain from doing something (eg, that a contract is terminated for breach and the defaulting party must pay damages for the breach).

When it comes to awarding damages, the Italian civil liability system is compensatory – that is, the innocent party is held harmless for the losses that it suffered as a direct or indirect result of the other party's fault (or strict liability) and is restored to its previous status.

The Italian courts do not award punitive damages. Notably, however, in 2017 the Court of Cassation ruled that a foreign judgment awarding punitive damages (a US judgment in that case) could be recognised and enforced in Italy because it did not violate any principle of Italian law.

9 Appeals

9.1 On what grounds may a judgment be appealed in your jurisdiction?

The judgment of a court of first instance that is a tribunal (see question 2.1) can be appealed to the appellate court located in the capital region. The judgment of a justice of the peace can be appealed to the tribunal of the district where the justice of the peace has its seat.

There is no need for leave from the court of first instance in order to appeal a judgment. The appellate court that will decide whether it can be seized of a specific appeal, based on whether the correct procedural rules were followed.

There are no limits to the grounds for appeal. The appellate court can revisit the merits of the case and effectively the appeal proceedings are a re-run of the first instance proceedings.

We outline in question 2.1 the circumstances in which a decision of the appellate court can be appealed to the Court of Cassation.

9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?

The appeal must be served on the other party and then filed with the court within either:

• 30 days of being served with the judgment by the other party; or
• six months of the date of publication of the judgment by the court in case the judgment was not served.

The appeal must set out specifically what the court of first instance got wrong and how the party wishes such wrongs to be righted.

As a general rule, the first instance judgment is not stayed pending appeal. However, the losing party can request the appellate court to grant a stay of the judgment if there are "serious and founded reasons, including the possibility of insolvency of one of the parties". The appellate courts very rarely grant such stays.

9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?

The single most important consideration – particularly for someone with a common law mindset – is that the party which loses at first instance can always seek to have the matter retried, as leave from the court is not required to appeal a judgment.

10 Enforcement

10.1 How are domestic judgments enforced in your jurisdiction?

Before a judgment or order from an Italian court can be enforced, the party seeking to enforce it must take the judgment or order to the court's clerk and get the court to affix on it a special stamp which contains the execution formula – that is, the order to the court-appointed bailiff (in Italy, there are no private bailiffs) to enforce the judgment.

In the case of money judgments, the victorious creditor must then serve upon the judgment debtor a final and formal request to pay (atto di precetto) within 10 days.

If payment is not made on time, the creditor can start enforcement proceedings. Usually, the proceedings take the form of third-party enforcement – specifically, through the arrest of the debtor's bank accounts. To this end, the creditor serves through the court-appointed bailiff, on both the debtor and its bank or banks, a writ of foreclosure (atto di pignoramento) which warns the bank not to allow money to leave the account and requests it to inform the creditor of how much money there is on the debtor's account and whether other creditors have taken similar actions.

If payment is still not forthcoming from the debtor, there are a number of further steps that the creditor must take towards the bank by involving the judge of enforcement, who will eventually order the bank to transfer from the debtor's account to the creditor:

• an amount that is sufficient to settle the judgment debt; or
• if there are insufficient funds to settle the debt in the debtor's account, the entire balance of the account.

Other forms of enforcement that are typically pursued include the attachment of real estate or movable assets with a view to having them auctioned off under the supervision of the court and the proceeds of the sale applied towards the debt. These are very detailed and lengthy proceedings, particularly in the case of enforcement against real estate.

Notably, the debtor's real property can only be appropriated by court bailiffs and after a custodian has been appointed. Unlike in common law jurisdictions, in Italy, there are no direct self-help remedies available to the creditor.

10.2 How are foreign judgments enforced in your jurisdiction?

The Italian court with jurisdiction over the enforcement of a foreign judgment is the tribunal of the place where the judgment debtor has its residence (in the case of natural persons) or its registered address (in the case of legal persons). If the debtor does not reside or have its registered address in Italy, the tribunal with jurisdiction is that of the place in Italy where assets are located that enforcement is sought against.

EU judgments: The recognition and enforcement of EU judgments in Italy is governed by the Recast Brussels Regulation (1215/2012), which has disposed of the need to obtain exequatur from the court of the jurisdiction where enforcement is sought.

All that is required in order to initiate enforcement proceedings in Italy are:

• a copy of the foreign judgment;
• a certificate from the foreign court stating that the judgment is enforceable and containing a summary of the judgment and the relevant information on costs and interest; and
• a certified translation of both the judgment and certificate.

Non-EU judgments: In the absence of any applicable convention, in order to be enforceable in Italy, a foreign judgment originating from outside the European (this includes US and British judgments) must first be recognised in Italy.

A foreign judgment must be recognised by the appellate court at the place where the judgment debtor has its residence (in the case of natural persons) or has its registered address (in the case of a company). If the debtor does not reside or have its registered address in Italy, the court with jurisdiction is that of the place in Italy where the assets against which enforcement is sought are located.

Law 218/1995 sets out the test that the foreign non-EU judgment must meet in order to be recognised as being enforceable in Italy, as follows:

• The foreign court was invested of the lawsuit in accordance with rules on jurisdiction that conform with Italian law;
• The claim form (or equivalent document instituting the foreign proceedings) was brought to the attention of the defendant in accordance with the law of the place where the proceedings took place and the essential rights of defence were not infringed;
• The parties entered an appearance in accordance with the law of the place where the proceeding took place or the absentia was declared in accordance with that law;
• The judgment has become final in accordance with the law of the place where it was given;
• The judgment does not contravene another judgment handed down by an Italian court and which has become final;
• There are no pending legal proceedings before an Italian court in connection with the same subject matter and between the same parties (as that of the judgment), which began before the foreign proceedings; and
• The judgment will not have an effect that would be contrary to public policy.

'Public policy' as referenced in Article 64 relates strictly to the rules and principles of Italian civil procedure, not of Italian substantive law. By way of example, the Italian Supreme Court found that a judgment issued in a jurisdiction that does not afford a system of appeal to be in breach of the public policy requirement.

In addition to pleading the fulfilment of all the above requirements in the application to the appellate court, the following must be enclosed with the application:

• a certified copy of the judgment, either apostilled or legalised;
• a certified translation of the judgment into Italian; and
• if the judgment was given in default, a certified true copy and translation into Italian of the certificate of proof of service of the claim form or equivalent document that instituted the foreign proceedings.

The application is filed with the appellate court and then served on the judgment debtor. After considering the application sitting in chambers, the court will issue and serve on the parties a decree that either recognises or denies the enforceability of the foreign judgment.

The defendant can file an opposition to the decree that recognises the enforceability of the judgment within 30 days – or 60 days if the defendant is based abroad – of being served with the decree. If this term expires without the judgment debtor filing an opposition to it, the creditor can proceed with enforcement by serving upon the debtor the final and formal request for payment.

Foreign arbitral awards: The recognition and enforcement of foreign arbitral awards in Italy is governed by Articles 839 and 840 of the Civil Procedure Code, which incorporate the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations diplomatic conference that took place on 10 June 1958.

The rules that apply to the recognition of a foreign arbitral award are broadly similar to those that apply to a non-EU judgment. Here the appellate court will need to be satisfied that:

• the award was validly arrived at in accordance with the arbitration clause of the agreement; and
• the arbitration clause conforms with principles of Italian law.

Also, if the defendant is not resident in Italy, the appellate court that has jurisdiction is that of Rome.

10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?

Where a party is suing outside Italy, an Italian defendant or a defendant that is not Italian but has assets in Italy must ensure that the service of proceedings is attempted in the correct fashion; otherwise, it may end up with a judgment that is not enforceable in Italy.

11 Costs, fees and funding

11.1 What costs and fees are incurred when litigating in your jurisdiction?

Court fees in Italy are very low compared with those in England. By way of example, for a claim worth between €260,000 and €520,000, the court fees amount to €1,214. For a claim worth more than €520,000, the court fees amount to €1,686.

Legal fees are also significantly lower. This is mainly because for reserved activities, which include the conduct of litigation, Italian lawyers usually charge out in accordance with a tariff established nationwide. The tariff is based on the value of the dispute. Italian lawyers rarely charge by the hour, although they are allowed to do so. Furthermore, they perform the role of both solicitors and barristers. This leads to efficiencies for litigants, particularly from an economic standpoint.

As a general rule, at the end of the proceedings the losing party is ordered to pay the other party's legal costs. There are exceptions to this rule – the most notable of which is where the winning party has behaved unconscionably during the proceedings. In the case of judgments in complex, multi-layered matters entailing counterclaims, it is not always clear-cut which party is the losing one. Hence, the Italian court often ends up ordering that each party pay its own costs, even in situations where one party which has, in the main, lost the case.

11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

Yes, contingency fees are permitted but must be reasonable. They are usually structured as damages-based agreements rather than conditional fee agreements. There is no scope for the latter, as lawyers do not usually charge out by the hour.

11.3 Is third-party funding permitted in your jurisdiction?

Yes, and there are no particular issues and limitations relating to champerty or otherwise. However, third-party funding is not very common in Italy due to a combination of factors, which include the following:

• Litigating in Italy is generally less expensive than, say, in England;
• The time it takes to obtain a judgment is longer; and
• There is no market for after-the-event insurance, which in turn is the consequence of a number of factors, including:
• • low court fees;
  • low fees charged by lawyers; and
  • the absence of security for costs.

These factors all make litigation a far less risky pursuit in Italy than it is in England, with the exception of the 'randomness factor' mentioned at the end of question 1.1.

11.4 What other strategies should parties consider to mitigate the costs of litigation?

Parties that are involved in Italian proceedings and which are seeking to mitigate costs should approach mediation in the knowledge that it is the only way to put some degree of pressure on an unreasonable opponent eager to exploit the slowness of Italian proceedings.

12 Trends and predictions

12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The Italian litigation landscape has been recovering since the COVID-19 pandemic. The Italian courts showed considerable adaptability and resilience during the pandemic, moving quickly to virtual hearings. That said, the emergency caused delays and undoubtedly affected the caseload of judges who were already struggling to cope.

As regards new developments, two of the last decrees promulgated by the Draghi government in late September 2022 introduced changes to the Code of Civil Procedure that will streamline Italian civil proceedings. The new rules, which must be converted into statute by the Parliament, provide as follows:

• During the second hearing, the court will provide the parties with a timetable for the proceedings;
• The initial phase of the proceedings will be compressed so that by the time the second hearing takes place, the court has been made aware of all elements of the case, including all evidence, so that it can exercise its case management powers more efficiently. These include the ability to switch to the streamlined proceeding pursuant to Article 702bis of the Code of Civil Procedure;
• The hearing at which the parties make their final pleadings will be replaced with the exchange of written briefs;
• More than 90 days can go by between the second hearing and the evidential hearing;
• The timelines to file final briefs will be reduced; and
• Technological innovations introduced to cope with the pandemic will be adopted permanently.

Under the new rules, the streamlined procedure of Article 702bis of the Code of Civil Procedure will be extended from claims that are not supported by written evidence to:

• claims that are supported by other types of evidence that can be easily gathered; and
• claims where the facts are not disputed by the parties.

Furthermore, the new rules seek to incentivise mediation by introducing tax breaks for pay-outs.

13 Tips and traps

13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?

Recommendations vary depending on the legal mindset of the person that approaches Italian proceedings for the first time.

For a party with an English law mindset which is considering bringing an action, the recommendation is to expect slower proceedings (with appeals being very common), lower costs and generally a less 'charged' process than in England. This also means less opportunity to bully a defendant that is not financially resourceful. Importantly, under Italian law a party is not obliged to disclose to the other party known adverse documents.

In the United States, the scope of disclosure is even wider that in the United Kingdom, as it extends to non-relevant non-privileged documents. Hence, a US plaintiff which is considering bringing proceedings in Italy should be made aware that there is no disclosure in Italy the way it is intended in the United States. Another important consideration is the absence of punitive damages which determines significantly lower pay-outs in Italy for personal injury cases – certainly lower than in the United States, but on par with other European countries and certainly higher than in the United Kingdom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.