ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
1. Identifying Assets in the Jurisdiction 1.1 Options to Identify Another Party’s Asset Position To identify the asset position of a potential debtor, the creditor may resort to publicly available information, including via the following channels. • To identify real estate properties, searches can be made of the Public Register of Immovable Property ( Conservatoria dei Registri Immobiliari ). Notably, deeds involving the transfer of ownership or other rights in rem involving real estates are transcribed in this public register in favour of the the party acquiring the right in rem and against the party transferring the right; other rights concerning real estates (such as the establishment of a mortgage and subsequent events) are likewise documented therein. In all these cases, therefore, third parties can search the deeds entered in the registry in the name of the potential debtor, and they are allowed to extract copies of the deeds by virtue of which the relevant rights were established, transferred or modified. • To assess the existence of ownership or other rights concerning vehicles, the Public Motor Vehi - cles Register ( Pubblico Registro Automobilistico ) is available. Similar registers also exist for ships and aircrafts. • If the debtor is an entrepreneur (including, but not limited to, companies), the main source of infor - mation is the Commercial Register (held by local Chambers of Commerce), with which all entrepre - neurs (regardless of the legal form under which the business is conducted) must register. This register includes information concerning, inter alia, the identity of the shareholders and directors, the identification of shares or quotas owned by each shareholder, and information concerning transfer of rights in those shares or quotas. Furthermore, the Commercial Register provides access to copies of the deeds published therein, including financial statements and other deeds (such as mergers, demergers, transfer of corporate interests, and leases). • To identify a debtor’s assets for attachment, the creditor may also request that the bailiff carries out an electronic search of official public databases,
as provided by Article 492-bis of the Italian Code of Civil Procedure (CCP) (see 2.4 Post-Judgment Procedures for Determining Defendants’ Assets ). This kind of search extends to registries that are not directly accessible to private parties, such as registries held by the national tax authorities.
2. Domestic Judgments 2.1 Types of Domestic Judgments
Under Italian law, decisions rendered as a result of ordinary proceedings differ according to the nature of the determination made by the court and the sub - ject matter of the ruling. Specifically, judgments are divided into: • judgments merely aimed at establishing whether a right exists or does not exist ( sentenze di mero accertamento ); • judgments ordering the debtor to pay an amount or to do something or, in any case, granting the creditor another form of relief that may be enforced ( sentenze di condanna ); • judgments that create, modify or extinguish certain rights or legal situations, which necessarily require the intervention of a court to that effect ( sentenze costitutive ). All the aforementioned decisions are subject to appeal and, under certain conditions, they may also be chal - lenged before the Italian Supreme Court. If the decision is no longer subject to any of the ordi - nary appeals listed in Article 324 of the CCP – either because the parties exhausted the appeals available or because they failed to activate them within the rel - evant time limits – such decision will acquire res judi - cata effect, thus becoming final and binding for the parties, their heirs and successors in title. As a general rule, sentenze di condanna are imme- diately enforceable, even if they are still subject to or have already been appealed and are therefore not yet final and binding. Conversely, both sentenze di mero accertamento and sentenze costitutive may be enforced only insofar as they acquired res judicata effect.
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