In our next client letter we will hopefully report in detail on the reform of Italian civil procedure, which has already been passed by the Senate on 21 September 2021 and will be heard by the Camera on 22 November 2021, the day our client letter will go to print. To the extent that the Camera will follow the Senate, the most drastic change will be the introduction of preclusion rules already before the first hearing. While in the previous Italian civil procedure the first oral hearing was a quite unnecessary transitory station, it should now be used as the first opportunity to decide the civil case. The parties are encouraged to file all pleadings and motions for evidence already before this first date.
German colleagues will rub their eyes when reading these lines, since nothing else has applied in Germany since the introduction of the Code of Civil Procedure in the German Empire. In fact, one can see quite the opposite tendency. While the preclusion rules under the ZPO were applied so sharply to the first oral hearing until a few decades ago that the young lawyer could receive a judgment dismissing the action as early as three months after filing the action, surprise decisions have become rarer today. The Federal Constitutional Court has contributed to the fact that judges have become more caring and give guidance to the parties within the framework of section 139 of the Code of Civil Procedure prior to their decision.
The reform will also lead to a strengthening of pre-trial mediation. Evidence already collected in pre-trial mediation can be used in the later proceedings. The application of compulsory mediation will be extended to many areas of law. The remuneration regulations for lawyers are to be amended so that pre-trial settlements will be specially remunerated.
An interesting side issue concerns the reform of the court costs system. The reform - or rather the associated budget law - originally envisaged that, according to the German model, the court would not take action until the court costs had been paid. This caused a storm of indignation among all the executive boards of the Italian bar associations. Some statements are not even worth quoting. From the robber baron tower of the state to the barbaric attack on the rule of law, from civil procedure as the "salon of the of the rich" was the talk (source: il Dubbio of 17.11.2021), also of "class justice", so that a buckling of the reformists can be expected and the already low advance payments for court costs will no longer stand in the way of the rule of law.
The Court of Cassation has issued a detailed statement on the draft law, which we will gladly forward to interested parties.