International Association of Judges
2nd Study Commission
Civil Law and Procedure
Replies of the Italian Delegation to the
Questionnaire for the 2011 meeting
(Istanbul – Turkey, 5-8 September 2011)
CROSS-BORDER ISSUES
IN THE FACE OF INCREASING GLOBALIZATION
–
AS REFLECTED
IN A SERIES INDIVIDUAL FACT
SCENARIOS
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A. Recognition and Enforcement of a Foreign Judgment (A). General Questions: 1) What laws exist in your country regarding the recognition and
enforcement of a foreign judgment? |
The recognition and enforcement of foreign judgments
in Italy is governed by Article 64 et seq. of the Private International Law Act
(Law No. 218 of 31 May 1995), which replaced some provisions of the Italian
Code of Civil Procedure and of the Italian Civil Code.
As far as recognition is concerned, pursuant to the Act,
any judgment issued by a foreign court is automatically recognized in Italy
without the need of a court order (which was required under the old law),
unless the recognition or enforcement of the foreign judgment is denied or
resisted by the person against whom it is asserted. In order for a foreign
judgment to be (automatically) recognized, however, it must satisfy the
following requirements:
–
The judge who issued the judgment must have had
jurisdiction over the matter in accordance with the relevant Italian
principles;
–
The original summons or claim must have been
served upon the defendant in compliance with the prescriptions of the state in
which the process took place, and the fundamental right to a defence must not
have been violated;
–
The parties must have appeared in the action in
accordance with the local procedural law, or a default must have been properly
declared in accordance with such law;
–
The foreign judgment must be final and binding
according to the law of the jurisdiction in which it was issued;
–
The foreign judgment must not conflict with any
final judgment issued by an Italian court;
–
No proceedings may be pending before any Italian
court in relation to the same subject matter and between the same parties which
were instituted prior to the commencement of the foreign proceedings; and
–
The rulings contained in the foreign judgment
may not conflict with Italian public policy.
As I have just explained, no formal recognition is
required. However, pursuant Article 67 of said Italian act of 1995, in case of
not compliance with or of challenging of the automatic recognition of foreign
judgement, or when it appears to be necessary to enforce the judgement (see
below, on this aspect), anyone who has an interest in it can lodge a request
with court of appeal of the place in which the judgment has to be enforced,
asking the court to ascertain the existence of the requirements for the
recognition of the judgement. The judge can also incidentally recognize a
foreign judgement with an effect which is limited to this second judgement.
Just to give an example of this case, in a recent judgement before the first
instance court of Belluno, the court, which had been asked by an Ukrainian
woman to issue a legal separation judgement against her husband (Ukrainian
citizen), rejected her plea, because it incidentally recognized the divorce
judgement previously rendered by a Ukrainian court, so deciding that, being the
couple already divorced, they could no longer get a judgement of legal
separation (as, following the recognition of the foreign judgement, that couple
could not be considered as married).
Coming to enforcement, we have just seen that a
special procedure for recognition is requested by above mentioned Article 67 in
order to have a foreign judgement enforced. Therefore we can say that, while
recognition is, generally speaking, automatic (save challenge by concerned
party), enforcement presupposes as a formal requirement a previous formal
recognition by an Italian appellate court. After such recognition has occurred,
the foreign judgement can be enforced following the same procedure provided for
by Italian law for the execution of Italian judgements.
The issue of recognition and enforcement of foreign
judgements forms also object of a number of international conventions to which
Italy is part, as well as of an increasing array of regulations issued by the
European Union.
Among such European Regulations let me mention the
following ones:
–
Regulation (EC) No 1346/2000 of 29 May 2000 on
insolvency proceedings.
–
Regulation (EC) No 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments (called also “Brussels
I” Regulation). It entered into force on 1st March 2002 and simplifies the procedure for
having a foreign judgment declared enforceable, replacing the Brussels
Convention of 1968. The Regulation was extended to Denmark following the
conclusion of the Agreement between the European Community and the Kingdom of
Denmark on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters.
–
Regulation (EC) No 2201/2003 of 27 November 2003
concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility, repealing
Regulation (EC) No 1347/2000 (called also “Brussels II” regulation).
–
Regulation (EC) No 805/2004 of 21 April 2004
creating a European enforcement order for uncontested claims.
–
Regulation (EC) No 4/2009 of 18 December 2008 on
jurisdiction, applicable law, recognition and enforcement of decisions and
cooperation in matters relating to maintenance obligations.
Also some cross-border new procedures have been
created, in order to directly obtain an enforcement title, which is automatically
recognised and enforceable in any EU State (save Denmark):
–
Regulation (EC) No 1896/2006 of 12 December 2006
creating a European order for payment procedure.
–
Regulation (EC) No 861/2007 of 11 July 2007, establishing
a European Small Claims Procedure.
A tendency within the EU legal order is to
progressively abandon the distinction between recognition and enforcement. Aim
is to have a system in which European judgements can “circulate” among EU
countries without any need of formal recognition or exequatur. The recent “Stockholm Programme” (2010-2014) approved by
the EU clearly sets that goal, providing for that “As regards civil matters,
the European Council considers that the process of abolishing all intermediate
measures (the exequatur), should be
continued during the period covered by the Stockholm Programme. At the same
time the abolition of exequatur will
also be accompanied by a series of safeguards, which may be measures in respect
of procedural law as well as of conflict-of-law rules.” As far as such
safeguards are concerned, the same document says that appropriate measures will
especially regard “judgments taken by default, which may be measures in respect
of procedural law as well as of conflict
of law rules (e.g. the right to be heard, the servicing of documents,
time required for providing opinions, etc). The main policy objective in the
area of civil procedural law is that borders between countries in the European
Union should not constitute an obstacle either to the settlement of civil law
matters or to initiating court proceedings, or to the enforcement of decisions
in civil matters. With the Tampere conclusions and the Hague programme, major
steps have been taken to reach this goal. However, the European Council notes
that the effectiveness of Union instruments in this field still needs to be
improved.”
Coming to international conventions to which Italy is
part, I would like to mention following ones:
–
New Lugano Convention. Signed on 30 October 2007
by the European Union, this new instrument on jurisdiction and enforcement of
judgments in civil and commercial matters replaces the 1988 Lugano Convention,
which until then had governed the rules on jurisdiction between EFTA Member
States (EFTA covers the European Union plus Switzerland, Iceland, Norway and
Lichtenstein - however, this latter Member State did not ratify the Brussels
Convention). The original Lugano Convention, signed on 16 September 1988, was
negotiated on the basis of the Brussels Convention as interpreted by the European
Court of Justice over the past 40 years. The construal of the Lugano
Convention, however, did not fall within the ambit of the ECJ’s jurisdiction,
as of course it falls short of the requirements set out under article 293 of
the EC Treaty for a convention to be deemed as a piece of legislation produced
by the EU. As a result, to avoid divergent views on the application and
interpretation of the two Conventions, three additional protocols were adopted.
These additional protocols compel the courts of each Contracting State to “pay
due account to the principles laid down by any relevant decision delivered by
courts of the other Contracting State” in relation to the provisions of either
Convention. Protocol No. 2 sets up an information exchange system specifically
aimed at achieving uniform interpretation. This information system involves
transmitting relevant judgments delivered pursuant to these two Conventions to
a central body (a Register of the ECJ). The 2007 Lugano Convention on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters entered into force between the Member States of the European
Union (including Denmark) and Norway on 1 January 2010.
–
Hague Convention of 5 October 1961 concerning
the powers of authorities and the law applicable in respect of the protection
of infants (Hague Convention of 19 October 1996 on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co-operation in Respect of Parental
Responsibility and Measures for the Protection of Children has been signed in
2003 by Italy, but it has not been ratified yet).
–
Hague Convention of 1 June 1970 on the
Recognition of Divorces and Legal Separations.
–
Hague Convention of 2 October 1973 on the
Recognition and Enforcement of Decisions Relating to Maintenance Obligations.
–
Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction.
–
European (Council of Europe) Convention on
Recognition and Enforcement of Decisions concerning Custody of Children and on
Restoration of Custody of Children, Luxembourg, 20 May 1980.
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2) What is the
difference in the operative result in your country between the recognition of
a foreign judgment and the enforcement of a foreign judgment? |
The legal term “Recognition” designates the attribution within a certain
legal order of effects which are other than the enforceability. This means that
a judgement which has been recognised can automatically get all effects which
imply a modification in the legal relations among parties and with other
subjects. “Enforcement,” on the contrary, is the legal proceeding tending to force
parties to comply with the judgement. In other words, while recognition
automatically affects the level of legal relations, enforcement implies and
presupposes the cooperation (spontaneous or forced) by other people. Just to
give an example, saying that a foreign judgement of divorce is recognized means
that those persons can marry again, as they are considered to be singles,
without any need for the divorce judgement to be revised or submitted to an exequatur procedure. Having a former
husband pay alimonies according to the divorce judgement is, on the contrary, a
matter for execution.
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3) What conditions are required in the court of your country in order to
declare a foreign judgment as enforceable? |
As already mentioned (see above, under question A. 1.),
pursuant to Article 67 of the 1995 Act, a foreign judgement has to be formally
recognized by a decision of the court of appeal, in order to become enforceable
and to be enforced in Italy. This may happen under following conditions:
–
The judge who issued the judgment must have had
jurisdiction over the matter in accordance with the relevant Italian
principles;
–
The original summons or claim must have been
served upon the defendant in compliance with the prescriptions of the state in
which the process took place, and the fundamental right to a defence must not
have been violated;
–
The parties must have appeared in the action in
accordance with the local procedural law, or a default must have been properly
declared in accordance with such law;
–
The foreign judgment must be final and binding
according to the law of the jurisdiction in which it was issued;
–
The foreign judgment must not conflict with any
final judgment issued by an Italian court;
–
No proceedings may be pending before any Italian
court in relation to the same subject matter and between the same parties which
were instituted prior to the commencement of the foreign proceedings; and
–
The rulings contained in the foreign judgment
may not conflict with Italian public policy.
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4) In order to enforce a foreign judgment, does your country require
reciprocity with the country which gave the judgment? |
No, it doesn’t. Before the reform of 1995 came into
force, Article 16 of preliminary provisions of the Italian Civil Code
stipulated that foreigners could enjoy same civil rights as citizens only under
condition of reciprocity. This rule has been quashed by aforementioned law.
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5) Under what circumstances does the court in your country not enforce a
foreign judgment? |
I have already explained
(see above, under point 3), what are the requirements for the enforceability of
a foreign judgement. Therefore the Italian courts of appeal will not declare
enforceable those judgments which do not comply with above mentioned
requirements.
Let me point out in
particular, in this framework that Italian law provides that foreign judgments
shall not conflict with Italian internal international public policy (ordine pubblico interno internazionale),
often described in a more simple way as “Italian international public policy.”
Italian case law on the definition and scope of Italian international public
policy is very limited and has tended not to involve commercial cases. In those
cases in which Italian courts have ruled on the issue, the practice has been to
adopt a very narrow construction of public policy. It is therefore possible for
an Italian judge to order the recognition of a foreign judgment which, had the
judgment originated in Italy itself, would not have been issued on the basis
that it violated public policy. Just to give an example, which also shows the
difference between “Italian international” and “Italian internal” public policy,
in 1984 the Italian Supreme Court of Cassation declared as not in violation of
Italian international public policy the American rule which recognized validity
and enforceability of prenuptial agreements in contemplation of divorce, in a
case concerning an American couple. The same Court said that that very kind of
agreement would cause an infringement of the Italian internal public policy
(i.e. Italian mandatory rules, from which the parties may not depart, but which
do not represent fundamental and indefeasible values of Italian society).
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6) Can your country impose temporary orders issued by a foreign court,
such as alimony? |
According to Article
10 of Law 218/95 temporary orders can be issued by an Italian judge when the temporary
order has to be enforced in Italy or when there is Italian jurisdiction on the
merits of the case. So, for instance, in case of a prejudice caused by a
foreigner against an Italian citizen, the Italian judge will have jurisdiction
provided that assets of debtor to be frozen are located in Italy, or if the
place where the harmful event occurred or may occur is located in Italy
(because in this latter case the Italian judge has jurisdiction over the merit,
according to our conflict law rules). As far as recognition of foreign
temporary orders is concerned, it has to be underlined that Article 64 of the
Italian international private law reform of 1995 only concerns “judgments.”
According to the Italian definition of “judgment” a temporary order is not
contemplated under that provision; reason is that interim and precautionary
measures undergo simplified and accelerated procedures, they tend to be
provisional and they have are instrumental to the case (this means that, unlike
judgements, such decisions cannot become permanent and final). As a
consequence, a foreign temporary order (such as e.g. an American “asset-freezing
injunction”) cannot be recognized or enforced in Italy. Foreign creditors who
want to protect their credits and or assets in Italy will have to lodge a
petition with an Italian judge.
Special rules are
provided for within the European Regulation system.
Pursuant to Article 31
of “Brussels I” regulation, “Application may be made to the courts of a Member
State for such provisional, including protective, measures as may be available
under the law of that State, even if, under this Regulation, the courts of
another Member State have jurisdiction as to the substance of the matter.”
According to Article 47 of same Regulation, “1. When a judgment must be
recognised in accordance with this Regulation, nothing shall prevent the
applicant from availing himself of provisional, including protective, measures
in accordance with the law of the Member State requested without a declaration
of enforceability under Article 41 being required. 2. The declaration of
enforceability shall carry with it the power to proceed to any protective
measures. 3. During the time specified for an appeal pursuant to Article 43(5)
against the declaration of enforceability and until any such appeal has been
determined, no measures of enforcement may be taken other than protective
measures against the property of the party against whom enforcement is sought.”
Pursuant to Article 20
of the “Brussels II bis” Regulation “1.
In urgent cases, the provisions of this Regulation shall not prevent the courts
of a Member State from taking such provisional, including protective, measures
in respect of persons or assets in that State as may be available under the law
of that Member State, even if, under this Regulation, the court of another
Member State has jurisdiction as to the substance of the matter. 2. The
measures referred to in paragraph 1 shall cease to apply when the court of the
Member State having jurisdiction under this Regulation as to the substance of
the matter has taken the measures it considers appropriate.”
According to Article 14
of Regulation No. 4/2009, on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance
obligation, “Application may be made to the courts of a Member State for such
provisional, including protective, measures as may be available under the law
of that State, even if, under this Regulation, the courts of another Member
State have jurisdiction as to the substance of the matter.”
Coming to the special
case of a temporary order for alimony, I think this kind of decision, even if
it is a provisional one, can be considered as a “decision,” pursuant to Article
2 of said regulation No 4/2009. According to this provision, “1. For the
purposes of this Regulation: 1. the term ‘decision’ shall mean a decision in
matters relating to maintenance obligations given by a court of a Member State,
whatever the decision may be called, including a decree, order, judgment or
writ of execution, as well as a decision by an officer of the court determining
the costs or expenses. For the purposes of Chapters VII and VIII, the term ‘decision’
shall also mean a decision in matters relating to maintenance obligations given
in a third State.”
This means concretely
that, in alimony cases, the decision will be automatically enforceable,
according to Articles 17 et seq. of Regulation No. 4/2009, which provide for
abolition of exequatur for decisions
over maintenance obligations in Member States bound by the 2007 Hague Protocol,
without any special procedure being required and without any possibility of
opposing its recognition and also without any need for a declaration of
enforceability.
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7) What are the conditions necessary for recognition of a foreign
judgment in your country? Can your court recognize a foreign judgment
incidentally? |
As to the first part of the question, see above my
answers to questions A. 1. and A. 3.
As far as the second part of the question is
concerned, I have already pointed out, answering question A. 1., that the Italian
judge can also incidentally recognize a foreign judgement with an effect which
is limited to this second judgement. This is literally provided for by Article
67, Para. 3, of said Law No. 218 of 1995. I have already referred the case of a
recent judgement before the first instance court of Belluno, where the judge,
who had been asked by an Ukrainian woman to issue a legal separation judgement against
her husband (Ukrainian citizen), rejected her request, because the court
incidentally recognized the divorce judgement previously rendered by a Ukrainian
court, so deciding that, being the couple already divorced, they could no
longer get a judgement of legal separation (as, following the recognition of
the foreign judgement, that couple could not be considered as married).
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8) Is it possible to enforce a foreign arbitration award in your country? |
Pursuant to Article 839 of the Italian Code of Civil
Procedure “1. Anyone wishing to enforce a foreign arbitral award in Italy shall
file a motion with the President of the Court of Appeal where the other party
resides; if such other party does not reside in Italy, the motion shall be
filed with the President of the Court of Appeal of Rome. 2. The applicant shall
also file the original award (or an authenticated copy) as well as the arbitration
clause (or an authenticated copy). 3. In case the aforesaid documents are not
drafted in Italian, the claimant shall also file an official translation. 4. The
President of the Court of Appeal shall declare the award’s validity and
effectiveness unless he finds that: [a] The dispute could not be devolved to
arbitration according to Italian law; or [b] The award has been made by
decisions which are contrary to the Italian public order.”
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(B). Cases 1) Humpty and Dumpty
are a business partners in Wonderland. Humpty violated the partnership
agreement signed between them. The partnership agreement stated that the
partnership will be the representative in your country, of an investment
company from Wonderland, and will market its services in your country. Humpty
argued that Dumpty established a competing investment company in your
country. Wonderland Court ruled that the Dumpty violated his duty of good
faith and fair dealing and ruled against him to pay Humpty damages of 5.5
million dollars. A sum of one and a half million dollars as punitive damages
and the rest as compensatory damages for harm caused. Humpty asks the court in your country to enforce the Wonderland court
ruling, Dumpty opposed, his main claim being that part of the damages is
punitive and therefore is not enforceable. What is the law in your country? |
Pursuant to the case law of the Italian Supreme Court
of Cassation (see judgment No. 1183 of 19 January 2007) punitive damages award
is not in compliance with Italian internal international public policy. In a
product liability case, a federal district court in Alabama entered a one
million dollars judgment against an Italian manufacturer accused of producing a
defective item that allegedly contributed to the death of the plaintiff’s son.
The court did not specify the apportionment of contributory and punitive
damages against the Italian corporation. The Italian court of first instance
(the Venice Court of Appeals) refused to recognize and enforce the Alabama
judgment, concluding that the award was punitive in nature and, therefore,
contrary to Italian international public policy. An appeal ensued, but the
Supreme Court of Cassation found no fault in the lower court’s ruling and
upheld it on the ground that the Italian system of civil liability is strictly
compensatory, not punitive.
I personally do not agree with such conclusion.
Although it is true that, in the U.S., punitive
damages do not have a compensatory nature since their main goal is to punish
and prevent future wrongdoing, it is also true that the trend to rationalize
and restrict the award of punitive damages in the legal systems that admit this
category, as illustrated by U.S. practice, may contribute to reducing the gap
with other legal systems. In this regard, it is important to note that punitive
damages are remedies under private law. Additionally, in civil law countries,
examples can be found of institutions in which certain civil liability rules
have additional functions, such as discouraging certain activities in the future,
as illustrated by provisions on the extent of civil liability resulting from
environmental damage. Moreover, given that in many jurisdictions compensatory
damages may cover nonmonetary damage and that the costs related to litigation
are commonly awarded to the successful claimant, it may happen that the amount
of punitive damages awarded by a U.S. court may not always go grossly beyond
the amount a court in a country whose liability system is compensatory would
grant the plaintiff in the same dispute.
Let me also add that a recent reform in our Civil
Procedure Code has foreseen that a party who has started a frivolous litigation
before a court can be sentenced by the judge to pay a sum to the counterpart.
This sentence can be awarded even without any formal petition for it by the
counterpart and the above mentioned sum can be allocated by the judge in equity,
even in the case no evidence of pecuniary loss has been given by the party who
won the case. This means that the principle of punitive damages is going to be
progressively accepted even in an outdated and backward legal system like the
Italian (procedural) one.
In this scenario it seems hard to conclude that a
foreign judgement awarding punitive damages is in conflict with Italian
international public policy. Italian international public policy is referred to
principles that typically relate to the fundamental ethical, economic, social
and legal values of the members of society (see e.g. Italian Supreme Court of
Cassation, judgment No. 13928 of 13 December 1999): therefore, the principle
according to which judges can only allocate compensatory and not punitive
damages, which is currently under question even on the “internal” front, does
not represent, in my view, fundamental and indefeasible values of Italian society.
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2) A British
businessman got into debt in the amount of 100-200 million pounds sterling
and a bankruptcy order was issued against him by the High Court of Justice in
London, with the appointment of estate trustees. Following this ruling, the
trustee submitted to the court in your country a request to enforce the order
and to appoint an official receiver for the realization of the debtor’s
assets located in your country. a. Will the court in
your country enforce the court order obtained in England? b. The question was
asked to address the fact that the English ruling does not include a personal
operative remedy; in this case can your court enforce the ruling or rather
give recognition? c. Can it be a direct
recognition? If not, can it be an incidental recognition? d. What are the
different effects of the three variations: enforcement, direct recognition
and incidental recognition? |
a.
Pursuant
to Article 16 of Council regulation (EC) No 1346/2000 of 29 May 2000 on
insolvency proceedings, “Any judgment opening insolvency proceedings handed
down by a court of a Member State which has jurisdiction pursuant to Article 3
shall be recognised in all the other Member States from the time that it
becomes effective in the State of the opening of proceedings.” According to
Article 17 of the same Regulation, “1. The judgment opening the proceedings
referred to in Article 3(1) shall, with no further formalities, produce the
same effects in any other Member State as under this law of the State of the
opening of proceedings, unless this Regulation provides otherwise and as long
as no proceedings referred to in Article 3(2) are opened in that other Member
State. 2. The effects of the proceedings referred to in Article 3(2) may not be
challenged in other Member States. Any restriction of the creditors’ rights, in
particular a stay or discharge, shall produce effect vis-à-vis assets situated
within the territory of another Member State only in the case of those
creditors who have given their consent.”
b.
Pursuant
to Article 18 of the same Regulation, “The liquidator appointed by a court
which has jurisdiction pursuant to Article 3(1) may exercise all the powers
conferred on him by the law of the State of the opening of proceedings in
another Member State, as long as no other insolvency proceedings have been
opened there nor any preservation measure to the contrary has been taken there
further to a request for the opening of insolvency proceedings in that State.
He may in particular remove the debtor’s assets from the territory of the
Member State in which they are situated, subject to Articles 5 and 7. 2. The
liquidator appointed by a court which has jurisdiction pursuant to Article 3(2)
may in any other Member State claim through the courts or out of court that
moveable property was removed from the territory of the State of the opening of
proceedings to the territory of that other Member State after the opening of
the insolvency proceedings. He may also bring any action to set aside which is
in the interests of the creditors. 3. In exercising his powers, the liquidator
shall comply with the law of the Member State within the territory of which he
intends to take action, in particular with regard to procedures for the
realisation of assets. Those powers may not include coercive measures or the
right to rule on legal proceedings or disputes.”
c.
Pursuant
to Article 25, “1. Judgments handed down by a court whose judgment concerning
the opening of proceedings is recognised in accordance with Article 16 and
which concern the course and closure of insolvency proceedings, and
compositions approved by that court shall also be recognised with no further
formalities. Such judgments shall be enforced in accordance with Articles 31 to
51, with the exception of Article 34(2), of the Brussels Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,
as amended by the Conventions of Accession to this Convention. The first
subparagraph shall also apply to judgments deriving directly from the insolvency
proceedings and which are closely linked with them, even if they were handed
down by another court. The first subparagraph shall also apply to judgments
relating to preservation measures taken after the request for the opening of
insolvency proceedings. 2. The recognition and enforcement of judgments other
than those referred to in paragraph 1 shall be governed by the Convention
referred to in paragraph 1, provided that that Convention is applicable. 3. The
Member States shall not be obliged to recognise or enforce a judgment referred
to in paragraph 1 which might result in a limitation of personal freedom or
postal secrecy.”
d.
See
above, the answers to questions a. and b. Let me also add that, pursuant to
Article 38 of aforementioned Regulation, “Where the court of a Member State
which has jurisdiction pursuant to Article 3(1) appoints a temporary
administrator in order to ensure the preservation of the debtor’s assets, that
temporary administrator shall be empowered to request any measures to secure and
preserve any of the debtor’s assets situated in another Member State, provided
for under the law of that State, for the period between the request for the
opening of insolvency proceedings and the judgment opening the proceedings.”
Furthermore, as stated in Considerandum
No. 16, “The court having jurisdiction to open the main insolvency proceedings
should be enabled to order provisional and protective measures from the time of
the request to open proceedings. Preservation measures both prior to and after the
commencement of the insolvency proceedings are very important to guarantee the
effectiveness of the insolvency proceedings. In that connection this Regulation
should afford different possibilities. On the one hand, the court competent for
the main insolvency proceedings should be able also to order provisional
protective measures covering assets situated in the territory of other Member
States. On the other hand, a liquidator temporarily appointed prior to the
opening of the main insolvency proceedings should be able, in the Member States
in which an establishment belonging to the debtor is to be found, to apply for
the preservation measures which are possible under the law of those States.”
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3) Sarah and Judy have
been lifetime partners for 7 years and are citizens of your country. Their
permanent residence is the State of Neverland. Sarah bore a son after she had
been impregnated with a donor sperm. The son was adopted by Judy with Sarah’s
consent. The adoption order was issued in Neverland and Judy was registered
in the birth certificate as an additional parent. Sarah and Judy would like
to return to your country for the purpose of studying there for two years.
They have notified the registration official that Judy has adopted the child,
relying on the birth certificate and the ruling of the State of Neverland
which issued the decree of adoption. The Registration official refused to
accept the registry on the grounds that the existence of two biological
parents of the same gender is not possible and he is not obliged to accept
the registration at its face value. Sara and Judy apply to the court in your
country to recognize the adoption. a. What will be your
ruling? b. Does it depend on
the question of the law in your country allowing an adoption by a couple of
the same sex? c. If so, what will
be the ruling if it is not allowed? |
Of course the above mentioned cases are exceptional. The
general prohibition on minors’ adoption by single persons under Italian law has
been the topic of considerable debate in Italy—even more so because the
European Convention on the Adoption of Children authorizes its member states to
provide for adoption by single persons, though it does not require them to
allow it. As a consequence, gay or lesbian couples have no possibility to
adopt: they may not marry under Italian law and neither may they adopt as a
single person (which is possible in other European Countries).
Pursuant to a recent decision by the Italian Supreme
Court of Cassation (judgment No. 3572 of 14 February 2011), Italian first
instance juvenile courts (which are competent on the matter) cannot recognize a
foreign full adoption order in favour of a single parent, as no Italian law
bestows to single parents the right to full adoption. This is a consequence of the
fact that in this case, pursuant to Article 41, Para. 2, of the law No.
218/1995, special provisions of law No. 476/1998 should become relevant. The
latter is the Italian statute of ratification of Hague 1993 convention,
(Convention of 29 May 1993 on Protection of Children and Co-operation in
Respect of Intercountry Adoption), according to which also Italian provisions of
the law on adoption have been amended. So, according to Article 35 of Italian
law of 1984 on adoption, as amended, following the ratification of the 1993
Hague convention, Italian court cannot recognize a foreign adoption order which
is “contrary to fundamental principles regarding family and juvenile law.”
It has to be added that the same Supreme Court ruling
stated that the first instance court could however recognize “minor” effects to
that order, converting it into a special adoption, the so called “adoption in special
cases,” (see above) as provided for by Article 44. d) of the law No. 184/1983
on adoption. This kind of adoption produces less relevant effects than the full
adoption (e.g. all legal ties to the family of origin are not legally cut off,
as it happens with the full adoption).
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B. Cross border issues in the conduct of trials: Factual Scenario #1 Company “Head Co.” is the parent company of an international group of
companies. It carries on business in its country of incorporation, country A.
It also carries on business in country B through a subsidiary (“Subsidiary”)
which is incorporated in country B. “Director” is a director of Head Co. and Subsidiary. He is also a
resident of country B. Head Co. and Subsidiary claim that Director has breached statutory,
fiduciary and contractual duties that he owed to each of them, arising out of
his position as director of both Head Co. and Subsidiary. The companies allege that he
misappropriated funds of Head Co. and Subsidiary. They rely on substantially
the same acts and events to support their respective claims. Head Co. and Subsidiary have commenced two sets of proceedings against
Director: one in country A and the other in country B, both actions seeking
relief against Director arising out of substantially the same facts. Assume you are a Court in country A.
Director has applied to your Court for an order to stay the
proceedings against him in your country.
Questions: 1) What test would
your Court apply or what factors would your Court take into account when
determining Director’s application? 2) Would you be guided
by the laws of your country alone, or some kind of international
agreement? For instance, is your
country a signatory to a convention on jurisdiction? 3) If your country is
a signatory to such a convention how would this influence the decision making
process? 4) Would it make any
difference if there was a choice of jurisdiction provision in the contractual
arrangements between the companies and Director providing that the parties
submitted to the exclusive jurisdiction of country B? 5) Would your Court
take into account considerations of international comity? In other words,
grant a stay to give recognition to the jurisdiction of country B to
determine the dispute? 6) Would it make any
difference if country B was not a signatory to the convention? 7) If your country is
a signatory to such a convention, what is your Court’s experience of the
convention in resolving issues of jurisdiction and does the convention assist
to reduce disputes on jurisdiction? Additional facts: Assume that Head Co. argues that your Court should not stay the
proceedings in country A because the laws of country B do not recognise all
of the claims that have been made under the laws of country A. 8) Would this be a
relevant consideration to take into account in determining whether to stay
the proceedings? 9) How would your
Court determine whether the relevant claim formed any part of the laws of
country B? Additional facts: Assume that Director’s employment contract with Head Co. and
Subsidiary contained a choice of law clause, nominating the law of country B
as the applicable law in the event of a dispute. 10) How would the choice
of law clause influence your decision in the above scenario? 11) In what
circumstances would your Court decline to stay proceedings, despite the
clause? 12) Is your country a
signatory to a convention for the recognition of exclusive choice of court
agreements? If so, how does this influence the decision-making process? Is it
your Court’s experience that such a convention reduces disputes about the law
to be applied? 13) Does your Court
recognise any limit of jurisdiction based on principles of international
comity – that is, that a court should decline jurisdiction in recognition of
the foreign court’s jurisdiction? Additional facts: Assume that both courts are the appropriate forum for the dispute.
Assume also that Director makes an urgent application for a stay of both
proceedings in both country A and country B. You are the Court in country A
and would find it helpful to speak with the judge in country B to ascertain
what stage the proceeding has reached in country B and its likely hearing
date. You consider that this may be helpful in deciding whether to stay the
proceedings. 14) Is there any structured way in your system that enables judges of
different courts to communicate? If so, what is the structure and how
effective is it? Additional facts: Assume your Court does not grant a stay and the matter proceeds in
country A, applying the laws of country B.
15) How would your Court
receive evidence in relation to foreign law? For example in most common law
countries, the content of foreign law is a question of fact which is proven
by expert evidence. 16) Is your country a
signatory to any convention for determining foreign law? For instance, the
New South Wales Supreme Court in Australia and the Singapore Supreme Court
have entered into a Memorandum of Understanding (MOU) to work closely on
issues of foreign law. Under the MOU,
when an issue of foreign law arises in a case before either of the courts,
they will be able to direct parties to take steps to have any contested issue
of foreign law determined by the court of the governing law. 17) If your country has
similar arrangements with foreign courts, what is your Court’s experience?
Has it reduced the complexities and difficulties in ascertaining the content
of the foreign law? Additional facts: Assume that Director applies to have evidence taken in country B? 18) What factors would
your Court take into account when determining the Director’s
application? 19) Would you be guided
by the laws of your country alone, or some kind of international
agreement? For instance, is your
country a signatory to a convention for the collection of evidence? If so,
how successful is the co-operation in taking evidence in a foreign state and
how efficiently and expeditiously can evidence be taken? Additional question: If your country is a signatory to conventions in civil proceedings, is
it your Court’s experience that civil procedure for commercial cases as
between signatory countries have become more harmonised? |
1) & 2)
Relevant legal texts in this case are provisions of
Italian statutes, as well as of European Regulations and of international or
bilateral conventions.
The main legal source governing Italian jurisdiction
in civil and commercial matters is the already mentioned Law No. 218 of 31 May
1995 on the Reform of the Italian System of Private International Law. With
reference to jurisdiction, Article 3.1 of the 1995 Act contains a general rule
on jurisdiction which states that “Italian courts shall have jurisdiction if
the defendant is domiciled or resides in Italy or has a representative in this
country who is enabled to appear in court pursuant to Article 77 of the Code of
Civil Procedure, as well as in other cases provided for by law.” In addition to
this general provision, Article 3.2 provides for that “Italian courts shall
further have jurisdiction according to the criteria set out in Sections 2, 3
and 4 of Title II of the Convention on Jurisdiction and Enforcement of
Judgements in Civil and Commercial Matters with Protocol, signed in Brussels on
27 September 1968, enforced by Law No. 804 of 21 June 1971, with amendments in
force for Italy, including when the defendant is not domiciled in the territory
of a contracting State, with respect to any of the matters falling within the
scope of application of the Convention. With regard to other matters, jurisdiction
shall be also determined according to the criteria laid down for territorial
jurisdiction.” Therefore, Italian courts shall have jurisdiction if the
defendant, whatever his nationality, is domiciled or resident in Italy or has a
representative pursuant to Article 77 of the Code of Civil Procedure, i.e., a
representative empowered to act in court for the defendant (Article 3.1, first
part, 1995 Act). Case law also emphasised this rule underlining that the 1995
Act allows Italian courts to have jurisdiction when the defendant is domiciled
or resident in Italy, irrespective of his nationality (see the decisions of the
Italian Supreme Court of Cassation, No. 4807 of 7 March 2005, Riv. dir. int. priv. proc., 2006, p.
161; No. 2060, of 11 February 2003, ibidem,
2006, p. 547; Constitutional Court, decision No. 428 of 18 October 2000, ibidem, 2001, p. 645). Italian courts
shall have jurisdiction according to the criteria set out in Sections 2, 3 and
4 of Title II of the Brussels Convention even when the defendant is not
domiciled in an EU State, with respect to all the matters falling within the
scope of application of the Brussels Convention (Article 3.2, first part, 1995
Act).
Let me add in this framework that the reference made
by Article 3 of the Italian 1995 Act to 1968 Brussels convention should be read
now as a reference made to the already mentioned “Brussels I” Regulation, which
has replaced the 1968 Brussels convention. Therefore also relevant in the above
mentioned matter is Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters.
As for international conventions relevant in Italy,
Article 2 of the above mentioned 1995 Act specifies that “the provisions of
this law shall not affect the application of any international conventions to
which Italy is a party.” In fact, Italy is part to several conventions in this
field. Most of them only concern only recognition and enforcement of foreign
judgments and, consequently, do not have any relevance at jurisdictional level.
Nevertheless, there are some bilateral and multilateral agreements still in
force which apply to matters that fall within the scope of the Brussels I
Regulation.
Among multilateral conventions we can cite following
ones:
- Warsaw Convention of 12 October 1929 for the
unification of certain rules relating to international carriage by air;
- Brussels Convention of 10 May 1952 for the
unification of certain rules relating to civil jurisdiction in matters of collision
of sea-going ships;
- Brussels Convention of 10 May 1952 for the
unification of certain rules relating to the arrest of sea-going ships;
- Rome Convention of 7 October 1952 on damage caused
by foreign aircraft to third parties on the surface;
- Geneva Convention of 19 May 1956 on contracts for
the international carriage of goods by road;
- Paris Convention of 29 July 1960 on third party
liability in the field of nuclear energy, as amended by the Additional Protocol
of 28 January 1964 and by the Protocol of 16 November 1982;
- Brussels Convention of 31 January 1963,
Supplementary to the Paris Convention of 29 July 1960 on third party liability
in the field of nuclear energy;
- Brussels Convention of 29 November 1969 on civil
liability for oil pollution damage;
- Protocol on jurisdiction and recognition of
decisions in respect of the right to the grant of a European Patent of 5
October 1973;
- Geneva Convention of 6 April 1974 on a Code of
Conduct for liner conferences;
- Hamburg Convention of 31 March 1978 on the Carriage
of goods by sea;
- Convention concerning International Carriage by rail
of 9 May 1980 (COTIF);
- Montreal Convention of 28 May 1999 for the
unification of certain rules for international carriage by air.
Among bilateral conventions we can cite following ones:
- Convention between Switzerland and Italy of 3
January 1933 on the recognition and enforcement of judgments in civil and
commercial matters;
- Convention between Kuwait and Italy on the
recognition and the enforcement of judgments on civil matters, done in Kuwait
on 11 December 2002.
Moreover, please note that some bilateral conventions
concerning the judicial assistance in civil, commercial and criminal matters
govern recognition and enforcement of judgments. Among others, the following
conventions may be mentioned:
- the Convention between Italy and Argentina on
judicial assistance and the recognition and the enforcement of judgments in
civil matters, signed in Rome on 9 December 1987;
- the Convention between Italy and Lebanon on the
reciprocal judicial assistance in civil, commercial and criminal matters, as
well as the recognition and the enforcement of judgments and arbitral awards
and the extradition, signed in Beirut on 10 July 1970;
- the Convention between Italy and Tunisia on the
reciprocal judicial assistance in civil, commercial and criminal matters, as
well as the recognition and the enforcement of judgments and arbitral awards
and the extradition, signed in Rome on 15 November 1967;
- the Convention between Italy and the Republic of San
Marino of friendship and good neighbourhood, signed in Rome on 31 March 1939 as
amended by the Agreement of 28 February 1946.
3)
According to Article 20 of the above mentioned
Brussels I Regulation, “1. An employer may bring proceedings only in the courts
of the Member State in which the employee is domiciled. 2. The provisions of
this Section shall not affect the right to bring a counter-claim in the court
in which, in accordance with this Section, the original claim is pending.” The
petition to which the question refers could be seen (lacking in the question
any more precise clue) as a sort of “counter-claim.”
4)
Pursuant to Article 21 of the above mentioned
“Brussels I” Regulation, “The provisions of this Section may be departed from
only by an agreement on jurisdiction: 1. which is entered into after the
dispute has arisen; or 2. which allows the employee to bring proceedings in
courts other than those indicated in this Section.”
5)
Pursuant to Article 27 of Regulation No. 44/2001 “1.
Where proceedings involving the same cause of action and between the same
parties are brought in the courts of different Member States, any court other
than the court first seized shall of its own motion stay its proceedings until
such time as the jurisdiction of the court first seized is established. 2.
Where the jurisdiction of the court first seized is established, any court
other than the court first seized shall decline jurisdiction in favour of that
court.”
6)
Rules of Regulation No. 44/2001 have now a universal
character, that means that, thanks to the renvoi to it by our rules of private
international law, they should be applied also to cases involving states which
are not EU member states.
7)
So far, as far as I know, no such cases have been
instituted before my Court.
8) & 9)
I repeat that staying of the proceedings can only be
an effect of rules about jurisdiction: in this case, if my Court was seized as
second, I should stay the proceedings.
10) – 13)
See above, the answer to question 4).
14)
See the website of the European Judicial Network in
civil and commercial matters:
http://ec.europa.eu/civiljustice/index_en.htm
15)
Pursuant to Article 14 of 1995 Act, proof of foreign
law must be found ex officio by the
judge. He/She can also obtain help from the parties. Foreign law has to be
proved as if it were a fact. Accordingly, the instruments specified in
international conventions, information provided by the foreign authorities via
the Ministry of Justice, and opinions of experts or specialist bodies can be
used as modes of proof. In case foreign law cannot be proven, relevant law is
applied by using other connecting factors provided for in the same case, where
possible. Failing this, Italian law applies.
16) & 17)
Italy is part to the European Convention on
Information on Foreign Law (London, 7 June 1968). This Council of Europe’s
treaty is aimed at the creation of a system of international mutual assistance
in order to facilitate the task of judicial authorities in obtaining
information on foreign law.
According to this convention, any judicial authority
of a Contracting State may make a request to another Contracting State (or
information under the Convention (article 3 (1)). The request must state the
nature of the case, the questions on which information concerning the law of
the requested state is desired, and the facts necessary both for the proper
understanding of the request and for the formulation of an exact and precise
reply (article 4 (1) (2)). Copies of documents may be enclosed if they are
necessary for the proper understanding of the request. The request is
transmitted through designated national liaison organs, and a reply may be
prepared by the liaison organ of the requested state, or by an official or
private body, or a qualified lawyer acting on its behalf (article 6 (1) (2)).
The purpose of the answer is to provide the court which has made the request
with objective and unbiased information on the law of the state providing the
answer.
However, this instrument is very seldom used in Italy,
as well as in other European countries. For instance, according to
international studies, figures for 1975-1986 indicate that this Convention is
used more in Germany than in most other member states; a total of 281 German
requests to other member states compares to a total of 93 requests made to
Germany by other member states. Nevertheless, the less than twenty-five German
requests per year are clearly outnumbered by hundreds of expert opinions per
annum.
18) &19)
Italy is part to the Hague Convention of 18 March 1970
on the Taking of Evidence Abroad in Civil or Commercial Matters. Of course, as
far as relations among EU countries (save Denmark) are concerned, that
instrument has been replaced by Regulation (EC) No 1206/2001 of 28 May 2001 on
cooperation between the courts of the Member States in the taking of evidence
in civil or commercial matters.
As to the practical working of the above mentioned
instruments, let me only stress that on 5 December 2007, the European
Commission adopted its report on the application of the Council Regulation (EC)
1206/2001. The report has been prepared in accordance with Article 23 of the
Regulation. It concludes that the application of the Regulation has generally
improved, simplified and accelerated the cooperation between the courts on the
taking of evidence in civil or commercial matters. The Regulation has achieved
its two main objectives, namely firstly to simplify the cooperation between
Member States and secondly to accelerate the performance of the taking of
evidence, to a relatively satisfactory extent. Simplification has been brought
about mainly by the introduction of direct court-to-court transmission
(although requests are still sometimes or even often sent to central bodies),
and by the introduction of standard forms. As far as acceleration is concerned,
it can be concluded that most requests for the taking of evidence are executed
faster than before the entry into force of the Regulation and within 90 days as
foreseen by the Regulation. Consequently, modifications of the Regulation are
not required, but its functioning should be improved. In particular in the
current period of adaptation which is still ongoing, there are certain aspects
concerning the application of the Regulation which should be improved.
20)
If the question refers generally to any possible issue
in civil proceedings, I have to underline that, just to give an example,
concrete application of EU Regulations in the field of judicial cooperation in
civil and commercial fields are surely going to force a higher degree of
harmonization among different procedural laws of EU countries. It will be
enough to have a look at the “European Judicial Atlas in Civil Matters”
(available at the following website: http://ec.europa.eu/justice_home/judicialatlascivil/html/index_en.htm)
to understand how much a system essentially based on standardisations and forms
can contribute to a new system that is much simpler than the “traditional” ones
(I am particularly thinking to the very bad Italian tradition of judicial acts
and reasonings stretching for tens and tens of pages, basically repeating
hundreds of times the same concepts and being more and more replete of
irrelevant remarks). Just to give a concrete example let us think to the impact
that in the next years will be brought about by the spreading of the procedure
set forth by Regulation (EC) No 1896/2006 of 12 December 2006 creating a
European order for payment procedure. The enactment of this Regulation in given
concrete cases is done by simply using seven very simple forms (see them in
English at the following web page: http://ec.europa.eu/justice_home/judicialatlascivil/html/epo_filling_uk_en.htm).
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Factual Scenario #2 The plaintiff company commenced civil proceedings in country “X” against
the defendant, who was resident and living in England. The plaintiff alleged the defendant had
been involved in the misappropriation of $US 21m by one of its employees, and
applied to the Court for a worldwide injunction “freezing” the defendant’s assets,
in aid of the proceedings in country “X”, together with an ancillary
disclosure order relating to the defendant’s assets worldwide. Questions: 1) Would the court in
your country have jurisdiction to hear this matter? If so, on what basis? For instance, in some common law countries
exceptional circumstances would permit the making of an order on a particular
issue, even where the court otherwise did not have jurisdiction to hear the
matter. One such exceptional
circumstance might be where the court hearing the substantive dispute could
not make the freezing order of a person’s assets, so the making of the
freezing order by another court would assist the main proceedings. 2) What provisions
(statutory, procedural or otherwise) exist to enable a court to make a
worldwide order freezing an individual’s assets? What about disclosure orders? 3) How would an order
for disclosure and/or an order for the freezing of assets be enforced? Would enforceability of the order influence
the decision as to whether or not to make the order in the first place? (If it was likely that the order could not
be enforced, do you think the court would still make the order?) 4) Are there any
provisions the defendant can rely on, to resist the disclosure order? (for
instance, the privilege against self-incrimination) |
1)-4) As I have already remarked, according
to Article 10 of Law 218/95 temporary orders can be issued by an Italian judge
when the temporary order has to be enforced in Italy or when there is Italian
jurisdiction on the merits of the case. So, for instance, in case of a
prejudice caused by a foreigner against an Italian citizen, the Italian judge
will have jurisdiction provided that assets of debtor to be frozen are located
in Italy, or if the place where the harmful event occurred or may occur is
located in Italy (because in this latter case the Italian judge has
jurisdiction over the merit, according to our conflict law rules).
Coming to disclosure orders, I must
say first of all that the concept of discovery and pre-trial discovery, which
are institutions typical of the U.S. procedure, are quite unknown in the civil
procedure of the countries of civil law. Under Italian law, a party may obtain
a disclosure order prior to initiating a civil proceeding only in intellectual
property matters according to Article 121 of the Italian Code of Industrial
Property (CIP). Article 121 of the CIP, incorporates the principles set forth
by Art. 43(1) and 47 of the TRIPs agreement, which facilitate means of
gathering evidence, which lies within the control of the opposing parties. Art.
121 paragraph 2 establishes that where a party has provided genuine evidence of
the validity of his claims and has identified documents, data or information in
the possession of the opposing party in support of that evidence, that party
may request the court to order that the said evidence be produced or that the
said information be acquired by interrogation of the opposing party. He may
further request the court to order that said documents are necessary for
identifying the individuals involved in the production and distribution of the
goods or services constituting the infringement.
The above described situation
changes if we consider remedies available after a party has initiated a civil
proceeding. If the creditor has few means at his disposal to single out the
debtor’s assets subject to freezing, once he initiates the legal proceeding and
the judge has granted a precautionary measure provision, he has greater
instruments available. Article 210 of the Italian code of civil procedure
grants to the judge the discretional power to order, upon the party’s request,
the disclosure of a document or of another thing, which is in the possession of
the other party or of a third party, in case the judge deems it necessary for
the unfolding of the legal proceeding, provided that said disclosure order does
not cause damages to the party or to the third parties and does not oblige them
to infringe one of the guaranteed rights and secrets protected under Italian
criminal law.
Under
this Article, the claimant is permitted to apply for disclosure orders pending
a civil proceeding on the merits of the case. The claimant has the burden of
proving its right to legal proceedings by presenting serious evidence that
grounds its claim.
Enforcement of this order rests
basically on the fact that a party refusing to comply with it seriously risks
to lose his/her case. Actually, according to Article 116, Para. 2, of the
Italian code of civil procedure, the judge, while giving the final decision,
has to take into account parties’ behaviour. Therefore the behaviour of the
party who refused to comply with such an order, together with other relevant
circumstances, could lead the party to have the case decided against him/her.
No privilege against self-incrimination can be invoked by a party (but it must
be added that in Italy a party has the right not to tell the truth before the
judge).
Turin, 22 April 2011.
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Secrétaire Général Adjoint |
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de l’Union Internationale des Magistrats |