No. 66 - Civil Procedure Reforms in Italy: Concentration Principle, Adversarial System or Case Management?

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by Cristina Giorgiantonio September 2009

The paper provides a review of the major reforms that have affected the Italian civil procedure at first instance, from the early 90s until those introduced by law 69/2009, of June 18, and questions - in the light of theoretical analysis and international comparison - their consistency with the main goal of a substantial reduction of the excessive length of civil proceedings.

We examined two different procedural models: the first attributes significant powers to the parties in conducting the case (so-called "adversarial"); the other enhances the role of the judge in the use of case management (so-called "non-adversarial"). Theoretical analysis shows that both have limitations: the former is effective only if the parties are in a position of substantial equality; the latter requires a system of incentives (both procedural and organizational) ensuring that the judge exercises his prerogatives in a consistent manner.

The international comparison - focused on the main reforms enacted in other countries (England, United States, France, Germany and Spain) - shows some convergence between the systems towards the second model.

On the other hand, the Italian reforms of civil procedure lack a general reform project; in particular they do not show a clear choice between an adversarial or non-adversarial model. Specifically, the 1990 reform strengthened the role of the judge; in the special procedure for corporate lawsuits (rito societario) whereas previously the case was essentially conducted by the parties; the competitiveness law (legge competitività) further strengthened the powers of the judge, and gave the possibility to the parties to choose the rito societario (such a possibility was eliminated by the recent law 69/2009, which has abrogated this procedure).

However also the reforms that have emphasized the role of the judge, have at the same time maintained rigidities in the management of the lawsuit (for example, a series of compulsory hearings) and in the presentation of evidence (which remains fragmented into a number of separate hearings over a possibly very long period of time). These factors limit the possibility for the judge to identify the correct procedure according to each case's complexity.

Finally, to ensure the proper functioning of the system, it is necessary to support further measures. On one hand, there must be an effective system of sanctions - both procedural and disciplinary -aimed at identifying possible abuses. On the other hand, there is a need for supported intervention in the organization of the courts, that balances the workload of judges, encourages specialization, monitors compliance with the objectives of efficiency and productivity, and that is aimed to improve efficiency in the management of facilities and to introduce appropriate information technology.