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A reform of the civil proceeding: will it be simpler and more efficient?

A Reform Of The Civil Proceeding: Will It Be Simpler And More Efficient?

We are almost there: after the first green light given by the Italian Chamber of Deputies to the act that delegates to the Italian government the power to reform the civil proceeding, it will now be up to the Italian Senate to finally approve it.

The act we are talking about is Bill A.C. 2953 enabling the government to perform a large-scale reform of the civil proceeding according to the parameters of acceleration and specialization.

Will this really lead to a simpler and more efficient proceeding?

Simplification of the procedures, reduction of the length of the proceedings, increased efficiency and specialization in the offer of justice are the guiding principles of the reform.

  1. The first instance proceeding
  • extension and rationalization of the competence, per matter, of the sections specialized in business, which will be called “business and market sections”;
  • introduction into the Italian Code of Civil Procedure of the “principle of brevity of the deeds” which will be applicable to both the pleadings of the parties and the measures issued by the judge;
  • greater emphasis on the proposal of the judge to reach a settlement (articles 185 and 185 bis of the Italian Code of Civil Procedure) providing for the possibility to assess the conduct of the parties at this stage of the proceeding for the purposes of the decision;
  • review of the rules governing trial and decision-making stages, as well as rearrangement of the prescribed time limits and of the relationship between written and oral submissions
  • changes to the list of disputes currently handled by a court sitting as a unified bench with application of the ordinary procedure, and obligation to use the summary procedure pursuant to art. 702 bis of the Italian Code of Civil Procedure for all disputes, other than labor disputes, submitted to courts consisting of a sole judge;
  • extension of the possibility to obtain a decision further to an oral submission also in disputes that fall within the competence of a court sitting as a unified bench (pursuant to art. 281 sexies of the Italian Code of Civil Procedure);
  • introduction of the power of the judge to order ex officio the losing party, who acted or resisted in bad faith or gross negligence during the proceeding, to pay an economic sanction to Cassa delle Ammende in an amount ranging between the double and the quintuple of the value of the case filing fees (contributo unificato).
  1. The appeal
  • possibility also for the sole judge to decide the appeal if the case is not too complicated from a legal viewpoint or if its economic value is not that relevant;
  • possibility to declare inadmissible, pursuant to art. 348 bis of the Italian Code of Civil Procedure, the measure defining a summary proceeding;
  • in case of inadmissibility of the appeal pursuant to art. 348 bis of the Italian Code of Civil Procedure, the referee or the sole judge must file a report on the grounds for inadmissibility, in relation to which the parties will be allowed to start a debate in writing on the grounds of inadmissibility.
  1. The proceeding before the Supreme Court
  • review of the rules governing “in chambers” proceedings, abolishing the so-called Supreme Court filter, as introduced in art. 380 bis of the Italian Code of Civil Procedure by the 2009 reform, and replacing it with a hearing to be held in chamber. The counsels of the parties will not be admitted to such hearings, but will in any case be allowed to communicate in writing with the general prosecutor;
  • possible use of forms containing a synthesis of the grounds for the decisions, making reference, if necessary, to previous decisions.
  1. The enforcement proceeding
  • possibility to sell properties online, providing that failure by the judge to sell, for three times, the property, shall result in the judge be entitled to make a final attempt to sell it at a price lower (up to a half) than the initial price;
  • as to movable property, impossibility to seize goods of daily use if their market value is not significant, as well as pets;
  • extension of the indirect coercive measures provided for by art. 614 bis of the Italian Code of Civil Procedure, with a possibility for the judge to set out a sanction owed to the losing party if there has been a delay in performing the court order, whatever such order may be.
  1. The injunction proceeding
  • amongst the deeds fit to seek the granting of an injunction to pay or of an injunction for delivery pursuant to art. 634 of the Italian Code of Civil Procedure, there will be the invoice accompanied by an affidavit, attesting that the invoice has been entered into the accounting records of the creditor;
  • extension of the scope of application of the temporary enforcement of an injunction for procedural defects, seeking that the judge verifies if such defects are patently groundless. If this is the case, an opposition raised for procedural defects cannot prevent the injunction from being temporarily enforced.
  1. Other aspects affected by the reform

The rules governing telematics proceedings will be reorganized and the relevant implementing rules shall be included in the Italian Code of Civil Procedure, introducing a system capable of monitoring the functioning of the telematics system in order to enable the parties to comply with the prescribed time limits that, due to a malfunctioning, they were not able to meet.

The enabling law at issue will affect also special proceedings, with an enhancement of arbitration, and the so-called “traslatio iudicii”, namely, the possibility to switch from a proceeding to an arbitration and vice versa. The law provides also for an extension of the types of companies that are allowed to resort to such proceeding, conditional on their being registered with the Companies’ Registry.

  1. First comments on the reform proposal

A bill perhaps a bit too vague? many have already criticised it.

The comments received so far have emphasized the fact that the guiding principles/criteria contained in the enabling law are too generic, conflict with art. 76 of the Italian Constitution (according to which legislative power may not be delegated to the Government unless Parliament specifies principles and criteria of guidance, and only for well-specified subjects), and give no indications as to which the future delegated legislation will be. At first reading, the guiding criteria look so generic as to leave to the Government a margin of discretion in ruling the matter that is perhaps too wide, and prevent the possibility to make a control should there be an abuse of the delegated powers in the legislative decrees to be issued.

It has also been remarked that, if the aim of the reform is guaranteeing an increased efficiency in the offer of justice, reducing the right of defence and the guarantee to be heard is not the best solution.

Given the organizational and structural problems of the Italian justice system that make the demand for justice by citizens disproportionate with respect to the justice supplied by the State, the best manoeuvre should be adjusting the demand to the supply rather than speeding-up the proceedings which may result in a reduction of the right to defence and the guarantee to be heard of citizens.

A simpler and more effective proceeding?  Posterity will judge…

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This post first appeared on Italian Law & Litigation Blog: LitigAction, By Dla Piper Italy, please read the originial post: here

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