New Italian provisions to reduce the workload of the Italian Courts and to reduce the time to obtain Court decisions.
07.12.2014 – With Law no. 162/2014 the Italian Government has enacted specific provisions in order to reduce the workload of the Italian civil courts mainly:
(i) through the right of the parties to refer a pending legal proceeding to arbitration and
(ii) to the power of the parties to proceed with an amicable attempt to settle their dispute.
The new provisions are certainly to be welcome since actually aim at reducing the current workload of Italian Courts and to reduce, at leats in theory, the time necessary to obtain a decision.
This note will deal with the right of the parties to refer to arbitration an already pending case while a further note will discuss about the power of the parties to proceed with an attempt of amicable settlement of their dispute.
The party may agree to refer the matter to arbitration if:
(i) the legal proceeding is pending before a first instance Court or before the Court of Appeal;
(ii) the matter has not reached the decisions phase;
(iii) the legal proceeding does not relate to rights that cannot be freely disposed of by the parties, labour, public welfare and/or social security matters.
The new rules provide that the arbitration will be governed by the Italian Civil Procedural Code (even if with some differences which do not seem to be fully reasonable). Despite the parties are entitled to appoint them, the arbitrators can be chosen only amongst lawyers enrolled in the Italian Bar Associations (with at least 5 years enrollment).
Once the parties have agreed to refer the dispute to arbitration, they will inform the Court before which the dispute is pending and the competent judge, after having ascertained the occurrence of the conditions mentioned above, will send the relevant file to the Chairman of the local Bar Association (“Consiglio dell’Ordine degli Avvocati”) who will formally appoint the arbitrators nominated by the parties or, in case of failure by the parties, nominated by the Chairman itself.
The appointed arbitrators shall submit to the Bar Association a declaration of availability for the appointment. A specific future ministerial decree (to be enacted within 90 days from November 2014) will also identify further criteria for the appointment of the arbitrators with specific regard to the specialization of the lawyers and their experience in the matter referred to arbitration. This decree will hopefully remedy to an apparent lack of any specific requirement on the qualification of the arbitrators.
After the case has been referred to arbitration, it will continue before the appointed arbitrators and the arbitration proceedings have the same value of the ordinary litigation procedures. The award will have obviously the same value of a court decision.
If the Court litigation was pending before the Court of Appeal, the arbitration proceeding must be concluded within 120 days (eventually extended for a further 30 day period); otherwise the proceeding has to be resumed before the Court of Appeal in the following 60 days. If the parties do not resume the case before the relevant Court, the arbitral proceeding itself is declared extinct and the decision of the first court will become final.
If instead the Court litigation was pending before a first instance Court, the arbitration must be concluded within 240 days (as provided by Article 820 of the Civil Procedural Code).
Despite the new provisions are to be considered as an effective way to solve partially the well-known tardiness of the Italian judicial system, the new law has been criticized on various points as for instance, by the National Association of Judges, in respect of the authority granted to the Bar Association to appoint arbitrators. Certainly it is to be criticized the fact that the parties can appoint as arbitrators only lawyers (who will certainly be adequate for this role) but will not allow the parties to appoint technicians for all the disputes which will better understood by engineers or the like.
* This article published by BDA Studio Legale is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.