A further package of measures aimed at stimulating the competition of the Italian market has been introduced by the Italian Government on December 23, 2013 (Decree no. 145/2013), and now definitively converted into ordinary law by the Parliament (Law no. 9/2014). Part of these measures concerns civil procedure and is focused, in particular, on strengthening the specialization of courts with respect to proceedings involving foreign parties.
One of the most significant measures provided by Decree no. 145/2013 concerns the introduction of new criteria to determine territorial competence in proceedings involving foreign companies, reintroducing – with significant amendments – a provision for the first time provided by Decree no 69/2013, but then cancelled during the conversion into ordinary law. According to the precedent rules, when the proceedings lie within the jurisdiction of Italian courts, the competent judge shall be determined in accordance with the general criteria set forth by the Code of Civil Procedure, irrespective of the presence of one or more foreign parties. Now, with the new regulation entered into force on February 21, 2014, civil proceedings involving a company whose legal office is situated outside Italy, irrespective of the fact that said company has an Italian subsidiary with a permanent representative in Italy, can be decided only by the following courts: Milan, Rome, Naples, Turin, Venice, Genoa, Cagliari, Catania, Trento, Bolzano and Bari, as main courts where it is operating the so called “Tribunal of the Enterprises”.
The new regulation applies to civil proceedings commenced after February 21, 2014 and concerning the following matters, which are reserved to the exclusive jurisdiction of the Tribunal of the Enterprises:
- Intellectual property rights;
- Public contracts;
- Corporate law.
The rule applies both when the foreign company is plaintiff or defendant. As an example, in case of civil proceeding for patent infringement or corporate law issues (e.g., liability of directors, breach of a shareholders agreement, etc.) involves a foreign company having a subsidiary in Florence – and the venue of Florence would be competent according to the general criteria – the case has to be brought before the Court of Rome, since the Tribunal of the Enterprises based in Rome has jurisdiction with respect to cases included in the jurisdiction of Florence and related to a foreign party.
This new provision would have the result to create a more favorable environment for cross boarder litigation. As a matter of fact, the concentration of cross boarder litigation within the jurisdiction of main courts – which have already developed higher expertise in international law issues – would exclude the risk that intricate international disputes fall within the competence of small courts, which less frequently deal with cross boarder cases.
On the other side, it has to be noted that some scholars criticized the first attempt to introduce this kind of special exclusive venue, maintaining that this new criteria may be in certain cases conflicting with EU Regulation no. 44/2001 (Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), since some of its provisions designate directly the competent court in terms of venue: i.e., according to Article 6.1, in case of a number of defendants, the defendant domiciled in a Member State may be sued in an another Member State at the court of the place where one of them is domiciled; similarly, Article 6.2 regulates the action for warranty, stating that the court before which the original proceeding has been commenced is also competent for the possible subsequent action for warranty, irrespective of the fact that the third party sued has its domicile in a different Member State.
Case law will clarify the existence of possible contradictions between this new provision and EU Regulation. In any case, the new criteria has to be taken into account also during the negotiation of commercial agreements, in order to evaluate whether it is opportune, considering the actual interest of the parties, to choose the jurisdiction of a State Court or agree for the submission of the possible disputes related to the contract to arbitration.