ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
The 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 settlement attempt. The indica- tion 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 techni- cal consultant and fixes the date for the com- mencement of the procedure. The technical consultant, before filing the report prepared at the conclusion of the procedure, must, if possible, attempt to conciliate the par- ties. After this attempt: • If the parties have settled the dispute, the minutes of the conciliation constitute an enforcement order, for the purposes of expro- priation and specific performance and for the registration of a judicial mortgage. • If the parties have not settled the dispute, either party may request that the report filed by the technical 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 criteria 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 Prelimi- nary Technical Advice in the event that it is inad- missible (eg, brought in the course of proceed- ings on the merits already pending between the same parties and with the same subject matter) or irrelevant, or where a prejudicial 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 Preliminary Technical Advice. However, in 2023, the Constitutional Court ruled that the provi- sions governing this procedure are constitution- ally unlawful to the extent that they fail to allow appeals against such decisions, including those dismissed for inadmissibility. According to the Constitutional Court, the plaintiff’s right to con- duct an in-depth technical examination through this procedure – designed to avoid protracted and costly litigation – must be safeguarded by the availability of an appeal mechanism. Settlement Agreement A settlement agreement is a contract through which the parties, by making mutual conces- sions, 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 concili- ator can be a judge or another entity, such as a conciliation body or an independent conciliator. Advantages related to ADR procedures are as follows: • Cost-effective: ADR procedures are generally less expensive than litigation, as they involve
684 CHAMBERS.COM
Powered by FlippingBook