ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
to report suspicious transactions to the authorities with lawyers’ duty of confidentiality. The above rules and principles are generally not appli- cable to in-house counsel. 5.6 Rules Disallowing Disclosure of a Document Please see 5.5 Legal Privilege . 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The Prerequisites for Interim Action To obtain interim relief, two key prerequisites must be met: • fumus boni iuris (eg, the likelihood of existence of the claimed right); and • periculum in mora (eg, the imminent risk of irrepa- rable damage to the claimed right pending the trial on the merits). In interim proceedings, evidence is assessed in a summary manner, tailored to the needs of a prelimi- nary evaluation. The court does not need to establish the absolute validity of the claim but must determine whether it is likely to be valid. Nature of the Injunctive Relief Injunctive relief may serve either a conservative or anticipatory purpose, as outlined below. Conservative injunctive relief Such relief includes: • judicial seizure of assets, when their ownership or right of possession is disputed; • judicial seizure of evidence (such as documents or records), when the entitlement to their exhibition or communication is disputed; • seizure of debtors’ assets upon application of a creditor who has a justified fear of losing the secu- rity of his/her claim (provided that their attachment is allowed); and
• seizure of sums that the debtor has offered to the creditor for the debt release when the obligation or the way of payment are disputed. Anticipatory injunctive relief Such relief includes: • orders that prohibit or prevent a person from taking a particular action if harm may result from it; • preventive collection of evidence (which includes obtaining witness testimony, technical inspections, and expert reports for settlement purposes); • other emergency measures, that are not expressly provided for by law but suitable for provisionally securing the effects of the decision on the merits; and • orders that safeguard the right of possession. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Please see 4.7 Application/Motion Timeframe . 6.3 Availability of Injunctive Relief on an Ex Parte Basis If summoning of the other party could jeopardise the effectiveness of the injunctive relief, the court adopts the measure by decree “inaudita altera parte”, based on summary information if necessary. In such a case, a hearing must be set for the parties to appear within a period not exceeding 15 days, assign- ing a time limit to the applicant (no more than eight days) for the service. At the hearing, the court may confirm, modify or revoke the measure. 6.4 Liability for Damages for the Applicant Under Article 96 ICCP, if the court determines that the right for which the interim measure was granted does not exist, it may, upon the request of the oppos- ing party, order the applicant to pay damages if the applicant failed to exercise ordinary diligence in pur- suing the measure. Additionally, the court may impose a penalty on the applicant, requiring payment of an amount between EUR500 and EUR5,000 to the public treasury. Under Article 669-undecies ICCP, the court may impose a security requirement on the applicant when
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