ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
On a different note, decisions also differ depending on whether: • they completely define the entire subject matter in dispute – thus deciding all of the parties’ claims ( sentenze definitive ); or • they merely resolve certain preliminary issues or a portion of the merits of the claim, without address - ing the whole thema decidendum – thus allowing the proceedings to continue in order to assess these additional profiles ( sentenze non definitive ). Italian law also allows the court to issue – before reaching the final stage of the proceedings – meas - ures that can anticipate, to some extent, the effects of the decision on the merits. These are, specifically: • the order for payment of undisputed amounts (see Article 186-bis of the CCP); • the injunction for payment or delivery, issued inso - far as written proof of the claim is provided (see Article 186-ter of the CCP); and • the order following the evidentiary phase, issued if – at the end of such stage – the court consid - ers that the claim is already supported by proof, in whole or in part (see Article 186-quater of the CCP). Such orders, albeit subject to possible revocation by virtue of the judgment, are immediately enforceable (if so expressly declared, in cases under Article 186-ter of the CCP). It is worth mentioning that the recent reform of Ital - ian procedural rules introduced additional measures aimed at deflating litigation and speeding up the set - tlement of proceedings, allowing the court to issue orders granting (Article 183-ter of the CCP) or reject - ing (Article 183-quater of the CCP) the claim if – in the course of the trial (typically, but not exclusively, follow - ing the first hearing) – it becomes apparent that either the facts constituting the claim are proven and the defences of the other party appear to be manifestly unfounded (Article 183-ter of the CCP) or the claim is blatantly ungrounded (Article 183-quater of the CCP). In both cases, the order issued by the court – albeit being provisionally enforceable (insofar as it upholds
the claim) – is subject to appeal (under Article 669-ter - decies of the CCP). In any case, the order does not acquire res judicata effect and may not be invoked as being final and binding in other proceedings. Finally, Italian law envisages additional measures that may be enforceable, such as: • decisions rendered as a result of summary judg - ments (see Article 281-decies et seq of the CCP); • interim measures (whether issued ex parte or after discussion in a hearing); and • orders for payment of sums or delivery of goods ( decreti ingiuntivi ), issued upon written evidence, which become final if not opposed in a timely man - ner by the party against whom the order is issued and may be declared provisionally enforceable either: (a) at the time of issuance, in cases referred to in Article 642 of the CCP (orders issued on the basis of: (i) a deed received by a notary (or certain other securities); (ii) existence of a risk of serious prejudice in the event of delay in enforcement; (iii) existence of written recognition of the debt signed by the debtor); or (b) following the first hearing of the subsequent opposition proceedings that may be filed by the debtor, if such opposition is not supported by written or prima facie evidence. 2.2 Enforcement of Domestic Judgments In order to initiate enforcement, the creditor must obtain and serve on the debtor an enforcement title (ie, an enforceable decision of a court, or other spe - cific documents such as certain deeds received by a notary public, bills of exchange, or certain other secu - rities) granting a right that is certain, liquid, and not subject to an unexpired term. Furthermore, the creditor must serve a writ of enforce - ment ( atto di precetto ) to the debtor, thereby formally requesting that the latter fulfil its obligations estab - lished by the enforcement title (to be identified in their exact amount) within a period of no longer than ten days and warning the debtor that failure to do so shall result in commencement of enforcement.
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