Litigation in Italy
Italy is a very special country for me. My mother’s ancestors came to the United States from Naples and Sicily. I got engaged in Florence. And one of my favorite sushi meals ever was in Arezzo. But Italy is also a vibrant commercial center, exporting everything from fine food and luxury apparel to cars and pharmaceuticals. I’ve had the privilege of representing Italian clients in matters arising under the laws of the United States, but I have always been interested in learning more about how disputes are decided under Italian law. I had the chance to visit a court in Rome in 2022, but I still had some questions outstanding. So I was very excited to speak with Roberto Luzi Crivellini, a partner at Macchi di Cellere Gangemi in Milan, to learn more.
Why should you continue reading this post about litigation in Italy?
You have already read my interview with Prof. Ernest Metzger about litigation in Classical Rome and would like a sequel.
You visited Italy and wasted your time visiting restaurants, historical sites, and museums when you could have been learning about electronic filing.
You want my travel tips for Italy, which aren’t part of this interview, but the paninis at this place in Florence are basically worth the cost of your plane ticket.
Roberto Luzi Crivellini is a partner at Macchi di Cellere Gangemi in Milan.
Can you tell me about the kinds of disputes you handle in your legal practice?
I focus mainly on business consultancy for companies, especially in the international field, with particular reference to foreign investments in China. My work is mainly devoted to contractual matters, but I also handle disputes in Italy or abroad related to breach of contract. The firm where I work is multi-practice, so I often cooperate with other partners in other areas, such as extraordinary transactions.
What type of clients do you generally represent in disputes?
The usual client is a small to medium-sized company. Still, we also follow large multinational companies, which often approach the firm for long-term advice for the Italian subsidiaries of their group.
Besides Microsoft Office, what software do you use in your practice?
Among others, and in addition to the Microsoft suite, which we use in a comprehensive and integrated manner - including business management tools - I use Basecamp as my project management and communication tool with Legalmondo (a network of international lawyers present in 57 countries), Miro for design thinking (handy especially for complex projects and contracts), and DeepL for automatic text translation.
What books and websites do you use for legal research?
We use a number of sources for legal research. Online databases include, for example, the websites of publishers such as WoltersKluwer (OneLegale) or Giuffré (DeJure), which provide a good overview of case law, also with annotations, and in some subjects also of doctrine. We use online databases for legislation (e.g. “Normattiva”), and we also have several subscriptions to academic journals in the civil and commercial sector.
There have been commercial cases litigated in Italy since ancient times. Do lawyers only cite laws and decisions from the 20th and 21st centuries in their arguments, or do they ever cite older cases and laws in their work?
It must be said that the Italian legal system is not strictly based on case law and on the stare decisis principle… but we too are approaching Common Law practices, and it is common to write a brief without supporting one's arguments with case law. Generally, the most relevant and authoritative decisions are cited, i.e.: those of the highest courts (e.g. the Constitutional Court, the “Corte di Cassazione” – and the “Consiglio di Stato”, with preference over those of the Courts of Appeal and Tribunals); the most recent ones with preference over the oldest ones. If, however, there are historical judgments that have established jurisprudential orientations, we quote those and perhaps some recent examples that confirm them. Of course, if there is relevant European case law, we cite that in preference to everything else. This is because Italy recognizes the primacy of European Union law over national law.
In general, however, the most relevant case law - subject to exceptions - concerns cases subsequent to the promulgation of the Codes currently in force, i.e. after 1942 for civil and commercial matters.
Image credit: https://it.wikipedia.org/wiki/Palazzo_di_Giustizia_(Milano)#/media/File:Il_Palazzo_di_Giustizia_di_Milano,_sede_del_Tribunale,_opera_di_Marcello_Piacentini.jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
In Italy, a very efficient telematic system has been in place for years for civil proceedings: it is the so-called “Processo Civile Telematico” or PCT, which makes it necessary to file all briefs and documents, as well as to consult court decisions, electronically. We can still submit paper files to the court as an alternative, but these are now residual cases.
The Ministry of Justice's Telematic Services Website is this: https://pst.giustizia.it/PST/
There are various software facilities for managing the PCT, developed by software houses.
Does Italy have specialized courts that only hear commercial cases?
Some Courts do have sections specialised in business matters – the so called “Tribunali delle Imprese” – which only deal with industrial property (i.e. a broader definition of intellectual property) and unfair competition matters. These are only located in Ancona, Bari, Bologna, Bolzano, Cagliari, Campobasso, Catania, Catanzaro, Florence, Genua, L’Aquila, Milan, Naples, Palermo, Perugia, Potenza, Rome, Turin, Trento, Trieste and Venice.
Who decides the facts in a commercial case? Is it a judge or a jury?
A judge, either sitting solo or in a panel of judges. The jury is only present in limited cases of criminal law.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
It really depends on the complexity of the case. In Italy, there are no templates or forms to use; one only follows the rules of the civil procedure code, while the length of the act is left to the needs of the case and the sensitivity of the individual lawyer. I generally prefer conciseness, wanting to be as clear and convincing as possible. An introductory act in ordinary proceedings, in my experience, can be, on average, about fifteen pages long, while for complex cases, it can be up to 50/70 pages.
Generally speaking, how long does it take for a case to go from complaint to judgment?
If we refer to the first instance - but it still depends on the matter and the court in question - the average duration is between 1.5 and 2.5 years. In the case of an appeal, it takes up to 3-5 years on average. If the case ends up at the Supreme Court of Cassation (this is a judge of the third instance of 'legitimacy', who does not generally assess the substance of the case so much as the erroneous application of substantive, procedural, or jurisdictional rules), the entire litigation process could stretch to 7 to 9 years, according to the most recent statistics which, however, show data from the pandemic period, during which there has been a slowdown.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
In civil and commercial law, evidence is formed at the examining stage within the trial, i.e. before the judge. Witnesses admitted by the judge at the parties' request may only be heard by the judge, with respect to specific questions proposed by the parties and admitted by the judge, and on any other question that the judge deems useful to define the dispute.
If you win, does the other side reimburse your attorneys’ fees?
Yes, generally, the losing party has to reimburse the successful party for all costs incurred by the latter in defending itself, including its lawyer's fees. However, it is the judge who provides for it, and may also opt for an offset of costs if neither party wins the case, or in the case of the absolute novelty of the matter at issue or change in the case law with respect to the central issues, or for similar exceptional reasons; again, it may deny the reimbursement of costs if the parties have settled or if it considers the alleged costs to be excessive or unnecessary.
Are the Italian courts open to the public? Can ordinary people watch a commercial trial?
According to the Law, hearings are generally held in public, but the judge in charge of the case may order it to be discussed in private if there are reasons of state security, public order, or confidentiality of the matters discussed.
Since many hearings in civil law are held in the – rather small – Judges’ offices, though, it is more common for only the parties to be present – but you can still ask to join!
Do you believe that Italian courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
One weakness is certainly the length of court proceedings, although there are some exceptions in certain particularly efficient courts.
A strength is that judges are generally well-prepared, and decisions are, in most cases, well reasoned and argued.
Another positive side is that the cost of access to justice is rather low, and attorney fees are as well (especially when compared to the US).
How often do you go to the courthouse?
Personally, I prefer to focus on out-of-court advice or, occasionally, on arbitrations. Although I always write and/or review court documents, there is usually an associate of mine in court who follows litigation more closely.
When you are there, do you need to wear a special robe or wig?
Italian law requires lawyers to wear a robe (the so called “toga”) in public hearings in Courts and Tribunals. The praxis provides that lawyers only wear a toga during criminal hearings and when they have to plead a case before the Corte di Cassazione or the Consiglio di Stato. It is, therefore not necessary to wear a robe for civil and commercial matters other than judgments in the Supreme Court. The dress code in court hearings is formal (“business attire”).