ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
of documents at the lawyers’ offices, the wire- tapping of conversations or communications between lawyers and between a lawyer and the client and the seizure and control in general of the correspondence between the accused party and his defence attorney. Italian law also provides for the lawyers’ obliga- tion of confidentiality and lays down the cases in which lawyers cannot be obliged to testify on facts of which they have obtained knowledge in the performance of their profession. Other similar provisions are contained in the Ital- ian Law on the Legal Profession and in the Italian Code of Conduct for Lawyers. Special statutory provisions apply in certain matters. For example, the Italian Anti-money Laundering Law contains provisions aimed at balancing lawyers’ duty to report suspicious transactions to the authorities with lawyers’ duty of confidentiality. The above rules and principles are generally not applicable 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 exist- ence of the claimed right); and
• periculum in mora (eg, the imminent risk of irreparable damage to the claimed right pend- ing the trial on the merits). In interim proceedings, evidence is assessed in a summary manner, tailored to the needs of a preliminary 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 owner- ship or right of possession is disputed; • judicial seizure of evidence (such as docu- ments 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 security 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 dis- puted. 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, techni- cal inspections, and expert reports for settle- ment purposes);
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