After a first attempt made last June by the Government was
aborted, from February 22, 2014 new courts, established in a number
of main cities, will have jurisdiction over proceedings involving
foreign companies in some specific matters, such as intellectual
property, unfair competition and corporate law.
Although some of the new provisions may not be very easily
applied, the reform seems to represent a good fit for foreign
companies, who could be more comfortable litigating before courts
in main business centers.
Scope of the new venue rules
One of the main innovations introduced by Law Decree December
23, 2013, no. 150 (converted with modifications by the Law of
February 21, 2014, no. 9) concerns the concentration in only 11
main city courts of disputes in which foreign companies are
involved and that, in most cases, would otherwise fall within the
competence of other (smaller) courts. For this reason the new
"Super-courts" are located in cities deemed strategic to
a specific geographic area: Bari, Cagliari, Catania, Genoa, Milan,
Naples, Rome, Turin, Venice, Trento and Bolzano.
Not all proceedings in which the parties are foreign companies
fall under the new provision. Indeed, they must concern disputes
intellectual and industrial property law
Italian and European antitrust law
claims for damages against the members of the managing or
statutory auditing boards
liability claims brought by creditors of subsidiary companies
against companies that control them
relationships relating to subsidiary companies
public procurement contracts.
According to the new rules, the disputes that fall within their
scope shall be decided by fewer courts. This should be an advantage
for foreign companies in general, for the following reasons:
The bigger courts (and the law firms based in the relevant
areas) should be more familiar with disputes with international
aspects; the expectation is that decisions should therefore be
reached more quickly.
The small number of courts should lead to greater
predictability of decisions. Indeed, if there are fewer judges
involved in disputes of these kinds, it is more probable that their
decisions will be consistent and, therefore, that the outcomes of
the disputes may be easier to predict in terms of processing times
and/or economic costs.
Some issues raised by new rules
The new set of rules does not cover all cases which may occur in
practice, so there will still be problems that need to be solved by
judges and lawyers.
For example, it is not specified whether the new rules shall
apply not only when the foreign company is plaintiff but also when
it is defendant. In this respect, the new rule can reasonably be
interpreted as stating that the Super-courts also have jurisdiction
in cases where the foreign company is defendant.
Another question arising from the reform concerns whether the
new rule also applies to companies incorporated in Italy in the
form of a S.r.l. or S.p.A., but that have transferred their
registered office to another EU Member State, while retaining the
"lex societatis" of the incorporation and/or
establishment country (in this case Italy). While we deem it is
highly probable that Super-courts shall have jurisdiction also in
these cases, on the contrary, we interpret the rule as inapplicable
in cases where a party of the dispute is a company incorporated
abroad but with its registered office in Italy.
Finally, the first commentators on the rule have deemed that the
foreign company may well waive jurisdiction set out according to
the new rules and follow the ordinary ones instead. It could
therefore sue the defendant before a court corresponding to where
the defendant is domiciled, where the contract has been executed,
or where the relevant obligations have to be performed, even if
such court is not one of the Super-courts established by the new
rules. Furthermore, there are reasons to expect that the foreign
company could accept a clause in a contract stipulating that the
court with jurisdiction over the disputes arising from the same
contract will not be a Super-court.
Despite these issues of interpretation, the reform should be
welcomed. The challenge is now to enable the judges working within
the Super-courts to achieve the goals envisaged by the new rules.
In particular, the Super-courts should be organized in such a way
that any backlog does not adversely affect the work of the judges.
Furthermore, it is fundamental that the same judges be properly
identified on the basis of their skills and experience in disputes
with international aspects.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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