The controversial adoption by the Italian judiciary of a unified sole-judge court of first instance, which further restricts the application of the principle of collegiality and removes the distinction between the Magistrate Court and the High Court, has also resulted in the transfer of civil proceedings which were already pending in 1992, at the time the new civil procedure entered into force, to special "clearing divisions", composed of professional magistrates as well as honorary, ad hoc appointed, lay judges. The dubious skills and competence of the latter, who will frequently decide alone on disputes of noteworthy complexity, naturally constitutes a source of concern for the soundness and authority of future decisions; but in some cases the inexperience of such judges may of course also be an opportunity for one party to an action, due to the increased probability of unexpected outcomes, for example judgments in contrast to accepted case law, or to evidence which would normally appear insurmountable. In other words, the situation encourages those who formerly would have been confident of a favourable outcome to reconsider the risks of proceedings, and gives another chance to those who would normally have been convinced otherwise.
While cases in their preliminary phases will be merely taken up by the new judge, all cases already referred to the Court for final argument and decision will be returned to the Investigating Judge for a hearing set for the purpose of giving him a final, mandatory, opportunity to insist with the parties for a settlement of the dispute. To that hearing, to be held in chambers, the parties must appear in person or through representation by someone knowledgeable of the facts and provided with a special power of attorney, distinct from their counsel of record.
Despite the complete failure of the analogous provision currently present in Art. 183 of the Code of Civil Procedure, the legislator appears to persist in the notion that the number and the length of civil proceedings is a result of an insufficient amount of direct contact between the parties and the judge. Although one can reasonably predict that the use of the hearing in question will be deserted en masse by the parties to commercial disputes Ä as is the case for Art. 183 hearings where the parties are companies or public agencies Ä the judge could theoretically "draw conclusions" from the failure of a party to appear at those hearings.
For further information contact Studio Legale Sutti.
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