ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
Under the Code of Civil Procedure, Preliminary Tech- nical Advice can be employed to assess and deter- mine claims arising from the non-performance or defective performance of contractual obligations, or from torts. However, in 2023, the Constitutional Court expanded its scope of application. It held that Prelimi- nary Technical Advice may now address claims arising from any act or fact capable of producing legal claims under the legal system. This decision aligns with the legislative trend towards strengthening ADR mecha- nisms, underscoring the importance of this procedure in facilitating out-of-court settlements. The technical consultant’s assessment is confined to the facts in dispute and does not extend to the law applicable to the case. Similar to advice provided in ordinary proceedings on the merits, the consultant may determine: • the cause of the damage claimed by the applicant; • the identity of the applicant; and • the identity of the party against whom the assess- ment is sought, provided that party consents. It is important to note that the consultant is not author- ised to carry out investigative activities as part of this procedure. Preliminary Technical Advice procedure The application for the Preliminary Technical Advice must indicate the content of the future claim on the merits, in order to determine both the subject matter of the technical advice and the scope of the settle- ment attempt. The indication of the future claim is also useful in order to determine jurisdiction, which follows the same criteria as the proceedings on the merits. Following the application, the president of the court or the justice of the peace orders the appearance of the parties, appoints the technical consultant and fixes the date for the commencement of the procedure. The technical consultant, before filing the report pre- pared at the conclusion of the procedure, must, if possible, attempt to conciliate the parties. After this attempt, if the parties have settled the dispute, the minutes of the conciliation constitute an enforcement order, for the purposes of expropriation and specific
performance and for the registration of a judicial mort- gage. If the parties have not settled the dispute, either party may request that the report filed by the techni- cal consultant be included as evidence in subsequent proceedings on the merits. In such cases, the report may form part of the evidentiary material considered in the later trial. As to the costs of the procedure, if the parties have settled the dispute, the costs are to be set off, unless they agree otherwise. Failing that, the costs must be borne by the party bringing the action and then be definitively determined according to the ordinary crite- ria at the outcome of the subsequent proceedings on the merits (if the technical report is used as evidence). The judge must reject the application for Preliminary Technical Advice in the event that it is inadmissible (eg, brought in the course of proceedings on the mer- its already pending between the same parties and with the same subject matter) or irrelevant, or where a prej- udicial issue (such as jurisdiction) is raised in relation to the decision of the future case on the merits. The law does not explicitly provide for a means to challenge decisions rejecting applications for Prelimi- nary Technical Advice. However, in 2023, the Consti- tutional Court ruled that the provisions governing this procedure are constitutionally unlawful to the extent that they fail to allow appeals against such decisions, including those dismissed for inadmissibility. Accord- ing to the Constitutional Court, the plaintiff’s right to conduct an in-depth technical examination through this procedure – designed to avoid protracted and costly litigation – must be safeguarded by the avail- ability of an appeal mechanism. Settlement Agreement A settlement agreement is a contract through which the parties, by making mutual concessions, resolve an existing dispute or pre-empt a potential dispute that could arise between them. Conciliation This is an ADR procedure in which a dispute between two or more parties is resolved by mutual agreement, facilitated by a qualified and impartial third party (the conciliator). The conciliator can be a judge or another
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