Italy

• Pages: 281-300

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CHAPTER XIII

ITALY

A. Introduction: Italian Principles of Civil Procedure (Evidence)

The difficulties of obtaining evidence in Italy for use in litigation in

the United States are similar to those one may experience in other civil law

jurisdictions. This is based primarily on fundamental differences in the

respective procedural rules and the methods by which parties litigate their

disputes.

Like in most civil law jurisdictions, the concept of discovery as it is

utilized before courts in the United States is totally foreign to the Italian

legal system. The fact that, under Italian law, “any party who would like

to assert its own right at trial must prove the facts upon which such right

is based”1 already presents a difference from evidentiary principles in the

United States, as under Italian law litigants would not consider filing a

claim without knowing already what kind of evidence they will be

providing in order to prove that claim. Italian rules of civil procedure

require that documentary evidence and witness lists are filed with the

claim (complaint).2 Also, although opposing parties in a civil litigation can

freely submit documentary evidence to support their affirmative claims or

defenses, taking evidence at trial that is not documentary in nature, and

has not been attached to the claim (e.g., witness testimony), and is usually

executed by a judge.3

That said, because litigants in a civil dispute typically file their claims

based on the evidence they already possess, judges very rarely hear

requests to order the collection and production of additional information

considered necessary for trial.4

Thus, the concept of “pretrial discovery” does not exist in the context

of Italian civil procedure, and, for that reason, requests for pretrial

1. C.c. art. 2697.

2. C.p.c. art. 163 (requiring the introductory pleading indicate the evidence

that will be provided to the court in order to prove facts).

3. Id. arts. 200-266 (describing the judge’s powers to allow evidence into the

trial and direct the ascertainment of facts).

4. C.p.c. art. 210.

Obtaining Discovery Abroad

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discovery for use in foreign litigation are subject to close scrutiny by

Italian authorities to ensure such requests do not violate Italian public

policy. 5 The following serves as a guide to those seeking to obtain

discovery in Italy.

B. Statutory Framework: Law N. 218 of May 31, 1995

Articles 69 and 70 of Law No. 218 of May 31, 19956 (Italian Statutory

Framework) set the general rules under which requests for evidence for

use in foreign proceedings are handled in Italy.

The Italian Statutory Framework coexists, and must be applied

consistently with,7 the Hague Convention on the Taking of Evidence

Abroad in Civil and Commercial Matters (the Hague Evidence

Convention).8 The Italian Statutory Framework shall apply whenever a

request for evidence is originating from a country with which Italy has not

signed a specific treaty or convention, or shall serve to fill the gaps in

situations where the Hague Evidence Convention has no explicit rules

regulating a specific aspect of a request for evidence9 or in any case in

which there is no conflict between the two disciplines.

Two distinct procedural routes are laid out, depending on whether a

request for evidence is issued by a foreign judiciary authority, or directly

5. MANLIO FRIGO & LUIGI FUMAGALLI, L’ASSISTENZA GIUDIZIARIA

INTERNAZIONALE IN MATERIA CIVILE 116 (CEDAM ed., 2003).

6. While Law No. 218 of May 31, 1995 sets the general framework for Italian

international private law, Articles 69 and 70 in particular repealed Articles

802 and 803 of the Codice di procedura civile (Italian Code of Civil

Procedure), introducing a regime partially mirroring the 1970 Hague

Convention on the Taking of Evidence Abroad in Civil and Commercial

Matters. See Alberto A. Romano, L’assunzione di prove civili disposte da

giudici stranieri, 60 Riv. Dir. Proc., 221 (2005).

7. FAUSTO POCAR, L’ASSISTENZA GIUDIZIARIA INTERNAZIONALE IN MATERIA

CIVILE 150 (CEDAM ed., 1967).

8. Convention on the taking of Evidence Abroad in Civil and Commercial

Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted

in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].

9. ALBERTO A. ROMANO, Riv. D. Proc., Vol. 60 (2005, 1), L’ASSUNZIONE DI

PROVE CIVILI DISPOSTE DA GIUDICI STRANIERI, 224 (citing the Italian

hierarchy of sources of law, providing that a treaty or convention to which

Italy is a party shall prevail on a law approved by the Italian Parliament).

See also Cort. cost., 24 ottobre 2007, n. 348, G. U. 31/10/2007 n. 42 (It.),

Cort. cost., 24 ottobre 2007, n. 349, G. U. 31/10/2007 n. 4 2 (It.).