Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Italy

Reform of the Italian System of Private International Law1

Law of 31 May 1995, No 218

Title I – General Provisions

Article 1 (Purpose of the law)

  • The present law defines the reach of Italian jurisdiction, sets out rules for determining applicable law and governs the efficacy of foreign judgements and legal acts.

Article 2 (International conventions)

  • The present law shall not prejudice the application of international conventions in force in Italy.

  • In interpreting such conventions, account shall be taken of their international character and of the necessity for uniform application.

Title II – Italian Jurisdiction

Article 3 (Reach of jurisdiction)

  • There is Italian jurisdiction when the defendant is domiciled or resident in Italy or has in Italy an agent authorized to appear in court for him/her in accordance with art 77 of the Code of Civil Procedure, as well as in the other cases provided by law.

  • There is also jurisdiction based on the criteria established by sections 2, 3 and 4 of Title II of the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters and protocol, signed at Brussels on September 27, 1968, rendered effective in Italy by the law of June 21, 1971, No 804, and successive modifications in force in Italy, even if the defendant is not domiciled in a contracting state, where a subject matter covered by the Convention is involved. With respect to matters not covered by the Convention, if venue of a case before an Italian judge is proper then he/she also has jurisdiction thereof.

Article 4 (Accepting and excluding jurisdiction)

  • Even if there is no jurisdiction on the basis of art 3, there is jurisdiction if it is proved in writing that the parties have accepted it by agreement or the defendant appears in the proceeding without contesting jurisdiction in his/her first defensive act.

  • p. 3362Italian jurisdiction may be excluded in favour of a foreign court or arbitrator if the agreement to do so is proved in writing and the matter involves waivable rights.

  • The exclusion is ineffective if the court or the designated arbitrators decline jurisdiction or for whatever reason cannot take the case.

Article 5 (In rem actions relating to foreign real property)

  • There is no Italian jurisdiction with respect to in rem actions involving foreign real property.

Article 6 (Incidental issues)

  • An Italian judge may decide, incidentally, issues not within Italian jurisdiction but whose resolution is necessary in order to decide the case before him/her.

Article 7 (Pendency of a foreign proceeding)

  • When, during the course of a proceeding, a party raises the exception that an action was filed before the beginning of such proceeding and is still pending between the same parties before a foreign judge and the action seeks the same relief based on the same claim, then the Italian judge shall suspend the proceeding if he/she deems that the foreign remedy may produce legal effects in Italy. The judge shall continue the proceeding upon demand of an interested party if the foreign tribunal declines jurisdiction or if the foreign remedy granted is not recognised in the Italian legal system.

  • The Italian judge shall determine whether or not an action is pending before the foreign court by applying the law of the State in which the action is taking place.

  • If the outcome of a foreign proceeding could condition the result of an Italian proceeding, the Italian judge may suspend the case before him/her if he/she believes that the foreign remedy could produce legal effects in Italy.

Article 8 (When jurisdiction is tested)

  • Article 5 of the Code of Civil Procedure determines the reference date of jurisdiction. However, there is jurisdiction even if the facts and legal rules which support it occur only after the beginning of a proceeding.2

Article 9 (Jurisdiction in non-adversary proceedings)

  • There is jurisdiction in non-adversary proceedings when the relief sought concerns an Italian citizen or resident, or when such relief relates to situations or relations to which Italian law is applicable, as well as where the present law specifically so provides or where venue is proper before the Italian judge to whom the matter is brought.

Article 10 (Protective orders)

  • There is jurisdiction to grant protective orders where the relief is to be effected in Italy or where there is jurisdiction on the merits.p. 3363

Article 11 (Raising the lack of jurisdiction)

  • Lack of jurisdiction can be raised at any stage or level of a proceeding but only by a defendant who has appeared and not expressly or tacitly accepted Italian jurisdiction. The judge shall raise it from the bench, likewise at whatever stage or level of the proceeding, if the defendant has not appeared, if there is no jurisdiction under art 5 or if Italian jurisdiction is precluded by a rule of international law.

Article 12 (Procedural law)

  • A civil proceeding taking place in Italy is governed by Italian procedural law.

Title III – Applicable Law

Chapter I General provisions

Article 13 (Renvoi)

  • Whenever the succeeding articles call for the application of the law of a foreign State, such application shall include applying such State’s conflict of law rules providing for renvoi to the law of another State:

    • if the law of such other state accepts renvoi;

    • if the renvoi is to Italian law

  • However, paragraph 1 shall not apply

    • where the present law makes foreign law applicable on the basis of the choice of the parties;

    • with regard to the provisions of the present law as to the formal validity of legal acts;

    • with regard to the provisions of Chapter XI of this Title.

  • In cases to which arts 33, 34, and 35 apply, renvoi shall apply only if it results in applying a law which permits establishing filiation.

  • Whenever the present law calls for the exclusive application of an international convention, the question of renvoi shall be resolved as prescribed by such convention.

Article 14 (Finding applicable foreign law)

  • It is the judge’s function to ascertain foreign law. To that end he/she may avail him/herself of information acquired through the Ministry of Grace and Justice as well as means suggested by international conventions; he/she may also query experts or specialized institutions.

  • Where, even with the help of the parties, the judge is unable to ascertain applicable foreign law, he/she shall apply the alternative foreign law, if any, prescribed by the Italian choice of law rules for the same set of facts. In the absence of such alternative foreign law, he/she shall apply Italian law.

Article 15 (Interpreting and applying foreign law)

  • Foreign law shall be applied in accordance with its own rules governing interpretation and time and duration of effectiveness.p. 3364

Article 16 (Public order)

  • Foreign law shall not be applied if its effects are contrary to public order.

  • In such cases the judge shall apply the alternative foreign law, if any, prescribed by the Italian choice of law rules for the same set of facts. In the absence of such alternative foreign law, he/she shall apply Italian law.

Article 17 (Compulsory rules of law)

  • Notwithstanding the articles which follow, Italian rules of law whose subject matter and purpose require their application even where the application of foreign law is called for shall prevail.

Article 18 (States with multiple legal systems)

  • If the present law calls for the application to a particular case of the law of a State having more than one legal system, whether territorial or personal, the choice as to which system to apply shall be made in accordance with the criteria used in that State for making such choices.

  • If such criteria cannot be identified, the judge shall apply the legal system with which the specific case has the closest connection.

Article 19 (Stateless person, refugees and persons with more than one nationality)

  • Where the present law calls for the application of a person’s national law and that person is stateless or a refugee, the law of his/her domicile shall apply or, in the absence of such, the law of his/her residence.

  • If a person has more than one nationality, the law of the State with which he/she has the closest connection shall apply; but Italian law applies if he/she is an Italian citizen.

Chapter II Capacities and Rights of individuals

Article 20 (Legal capacity of individuals)

  • An individual’s national law determines when he/she acquires legal capacity. Where the law applicable to a relationship prescribes special capacity requirements, capacity in that relationship shall be determined by such law.

Article 21 (Simultaneous death)

  • When two people have died and it is not known which died first but a presumption needs to be made as to that matter, such presumption shall be made on the basis of the law governing the relationship in connection with which such presumption needs to be made.

Article 22 (Disappearance, absence and presumed death)

  • The requirements for and the effects of the judicial declaration of a person’s disappearance, absence or presumed death are governed by the law of his/her last nationality.

  • Italian jurisdiction exists as to the matters described in paragraph 1:

    • if a person’s last nationality was Italian;

    • p. 3365if a person’s last residence was in Italy;

    • if the judicial declaration of disappearance, absence or presumed death could produce legal effects in the Italian legal system.

Article 23 (Capacity of individuals to act)

  • An individual’s national law determines his/her capacity to perform legal acts. However, where the law applicable to an act prescribes special capacity requirements, then capacity to perform that act shall be determined by such law.

  • With respect to contracts made between persons who are in the same State, a person having legal capacity under the law of the State in which the contract is made may invoke an incapacity deriving from his/her national law only if the other contracting party, at the time of contracting, knew of such incapacity or was ignorant of it through his/her own fault.

  • With respect to unilateral acts, a person having legal capacity under the law of the State in which the act is done may invoke an incapacity deriving from his/her national law only if this does not prejudice parties who, without fault, have relied upon his/her capacity.

  • The limitations of paragraphs 2 and 3 shall not apply to acts relating to family relations or to succession by reason of death nor to acts relating to rights in real property located in a State other than that in which the act is carried out.

Article 243 (Rights of the person)

  • A person’s national law determines the existence and extent of the rights inherent in his/her own person except that the law applicable to family relationships determines the rights deriving there from.

  • The consequences of violation of the rights described in paragraph 1 shall be determined under the law applicable to tort liability.

Chapter III Legal Persons

Article 25 (Business corporations, partnerships and other entities)

  • The law of the State where formation was completed governs business corporations, partnerships, associations, foundations and other entities, public or private, even if they lack associative nature except that Italian law applies if the head office or the principal activity of the entity is in Italy.

  • Specifically, applicable law governs:

    • the type of entity it is;

    • its name or partnership name;

    • how it is formed, how it is transformed into a different type of entity and how it is dissolved;

    • its legal capacity;

    • how its governing bodies are formed and function and what powers they have;

    • who is empowered to represent the entity vis-a-vis third parties;

    • how one becomes or ceases to be a member, a shareholder or partner as well as the rights and obligations inherent in such status;

    • what assets are reachable to satisfy its liabilities;

    • the consequences of violations of law or of failure to observe its constituent documents.

  • A transfer of the registered office to another State or a merger of entities with registered offices in different States shall be effective only if carried out in accordance with the laws of said interested States.p. 3366

Chapter IV Family Relationships

Article 26 (Promise of matrimony)

  • The common national law of those to be married or, in its absence, Italian law, governs a promise of matrimony and the consequences of its breach.

Article 27 (Requirements for contracting marriage)

  • The national law of each party at the time of marriage determines legal capacity and other requirements to marry. However, effect shall be given to a final judgement rendered or recognised in Italy establishing the unmarried status of one of the parties.

Article 28 (Form of matrimony)

  • Matrimony is valid as to form if so considered by the law of the place where celebrated or by the national law of at least one of the spouses at the time of celebration or by the law of the State of common residence at such time.

Article 29 (Personal relations between spouses)

  • The law of their common nationality, if any, governs personal relations between spouses.

  • The law of the State in which their matrimonial life is predominantly lived governs personal relations between spouses having different nationalities or having more than one common nationality.

Article 30 (Property relations between spouses)

  • The law applicable to their personal relations governs property relations between spouses. However, spouses may agree in writing that their property relations shall be governed by the law of a State of which at least one of them is a citizen or resident.

  • An agreement between spouses as to applicable law is valid if so considered by the law chosen or by the law of the place where the agreement was made.

  • Where foreign law governs property relations between spouses, third parties are bound only if they knew of such or were ignorant of it through their own fault. Third parties are bound as to rights in real property only if the forms of public notice prescribed by the law of the State where the property is located have been complied with.

Article 31 (Separation and dissolution of marriage)

  • The spouses’ common national law at the time of application for separation or dissolution governs separation and dissolution of marriage; in the absence of such a common national law, the law of the State where matrimonial life is predominantly lived applies.

  • If applicable foreign law does not provide for the requested remedy (separation or dissolution of marriage), Italian law governing, respectively, separation or dissolution of marriage shall apply.p. 3367

Article 32 (Jurisdiction as to nullity, annulment, separation, and dissolution of marriage)

  • In addition to the cases where there is Italian jurisdiction under art 3, Italian jurisdiction extends to cases of nullity, annulment, separation and dissolution of marriage when one of the spouses is an Italian citizen or the marriage was celebrated in Italy.

Article 33 (Parentage)

  • Parentage of a child is determined by its national law at birth or, if more favourable, by the law of the State of which one of its parents is a citizen.

  • The law applicable pursuant to par. 1 determines the requirements for and effects of establishing its parentage as well as the grounds for contesting parentage; if the applicable law does not permit establishing or contesting parentage Italian law applies.

  • Parentage acquired on the basis of the national law of one of the parents may be contested only under such law; if such law does not permit contesting parentage Italian law applies.

  • The provisions of Italian law which confirm the abolition of any difference between legitimate and natural children must be applied, regardless of the provisions of any law otherwise applicable.4

Article 345 (Legitimation)

Article 35 (Recognising a natural son or daughter)

  • The requirements for recognition of a son or daughter are determined by his/her national law at the time of birth or, if more favourable, by the national law at the time of recognition of the person recognising the son or daughter; if such laws do not provide for recognition Italian law applies.6

  • A parent’s national law determines capacity to recognise a son or daughter.

  • The law of the State where recognition takes place or the law governing the merits determines the form of recognition.

Article 36 (Relations between parents and children)

  • The national law of the child governs personal and property relations between parents and children, including parental responsibility.7

Article 36 bis

  • Notwithstanding other law being applicable, in any case the provisions of Italian law apply which:

    • attribute to both parents parental responsibility;

    • cast on both parents the duty to support their son or daughter;

    • grant to the court the power to issue orders limiting or revoking parental responsibility in the presence of behaviours prejudicial to the son or daughter.8

    p. 3368

Article 37 (Jurisdiction in matters of parentage)

  • In addition to the cases where there is jurisdiction under arts 3 and 9, Italian jurisdiction extends to matters of parentage and personal relations between parents and children where one of the parents or the child is an Italian citizen or resides in Italy.

Chapter V Adoption

Article 38 (Adoption)

  • The national law of the adopter or the adopters’ common national law, if any, or the law of their common residence or the law of the State where their married life is predominantly lived at the time of adoption determines requirements to adopt and governs adoption and its revocation. However, Italian law applies where application to adopt a minor is made before an Italian judge and such adoption would grant the adoptee the status of son or daughter.9

  • The national law of an adoptee who is of age shall in every case apply with respect to consents, if any, required by such law.

Article 39 (Relations between an adoptee and the adopting family)

  • The national law of the adopter or the adopters’ common national law, if any, or the law of their common residence or the law of the State where their matrimonial life is predominantly lived governs personal and property relations between an adoptee, on the one hand, and the adopter or adopters and their relatives, on the other.

Article 40 (Jurisdiction in matters of adoption)

  • Italian judges have jurisdiction in adoption where:

    • the adopters or one of them or the adoptee are Italian citizens or foreigners resident in Italy;

    • the adoptee is an abandoned minor in Italy.

  • In addition to the cases contemplated by art 3, Italian judges have jurisdiction in matters involving personal or property relations between the adoptee, on the one hand, and the adopter or adopters and their relatives, on the other, where an adoption was effected under Italian law.

Article 41 (Recognising foreign judgements and judicial orders in matters of adoption)

  • Foreign judgements and judicial orders in matters of adoption are recognisable in Italy as provided in arts 64, 65, and 66.

  • However, such foreign judgements and judicial orders will not be recognised to the extent they are inconsistent with Italian special laws dealing with the adoption of minors.p. 3369

Chapter VI Protecting minors and the legally incompetent and support obligations

Article 42 (Jurisdiction and law applicable to protecting minors)

  • The Hague Convention of October 5, 1961 on the powers of authorities and the law applicable in respect of the protection of infants rendered effective in Italy by the law of October 24, 1980, No 742 shall, in every case, govern the protection of minors.

  • The provisions of the Convention also apply to persons considered minors solely by their national law as well as to persons not habitually residing in one of the contracting States.

Article 43 (Protection of adults)

  • An adult incompetent’s national law governs requirements for and effects of measures to protect him/her as well as relations between him/her and persons responsible for his/her care. However, an Italian judge may use Italian legal remedies to give provisional and urgent protection to an incompetent or his/her assets.

Article 44 (Jurisdiction to protect adults)

  • In addition to the cases provided for in arts 3 and 9, there is Italian jurisdiction to take measures to protect an adult incompetent when such measures become necessary for the urgent and temporary protection of the incompetent or his/her assets in Italy.

  • There is Italian jurisdiction as needed to modify or supplement the effects of a foreign remedy relating to competency of a foreigner where the remedy has effects in Italy by virtue of art 66.

Article 45 (Family support obligations)

  • The Hague Convention of October 2, 1973, on the law applicable to maintenance obligations rendered effective in Italy by the law of October 24, 1980, No 745 shall, in every case, govern family support obligations.

Chapter VII Succession

Article 46 (Succession upon death)

  • A decedent’s national law at death governs succession.

  • A testator may, by express declaration in testamentary form, subject the entire estate to the law of the State of the testator’s residence. The choice is not effective if at death he/she no longer resides in that State. If the declarant is an Italian citizen, the choice shall not prejudice the rights granted by Italian law in a decedent’s estate to his/her children, spouse and, in the absence of children, to his/her ascendants, provided such persons are residents of Italy at the decedent’s death.

  • The law applicable to the succession governs the division of an inheritance except where the persons participating in the division have agreed to apply the law of the place where probate is opened or the law of the place where one or several of the assets are located.p. 3370

Article 47 (Testamentary capacity)

  • A testator’s national law at the times, respectively, of making, modifying or revoking his/her will determines capacity to dispose of property by will or to modify or revoke a will.

Article 48 (Form of will)

  • A will is valid as to form if so considered by the law of the State where the testator made the will or by the law of the testator’s nationality, domicile or residence at the time of making the will or at death.

Article 49 (Escheat)

  • Escheat applies in favour of the Italian State as to a deceased’s assets in Italy where applicable foreign law does not provide for escheat in favour of such foreign state.

Article 50 (Jurisdiction in matters of succession)

  • Italian jurisdiction extends to succession:

    • if the deceased was an Italian citizen at death;

    • if probate is opened in Italy;

    • if the major economic value of the estate is located in Italy;

    • if the defendant is domiciled or resident in Italy or has accepted Italian jurisdiction, except where the complaint relates to foreign real estate;

    • if the complaint relates to assets in Italy.

Chapter VIII Rights in Property

Article 51 (Possession and property rights)

  • The law of the State where the assets are located governs rights of ownership and possession as well as other rights in real and personal property.

  • That law also governs acquisition and loss of such rights except in succession or where the acquisition of any such right depends upon a family relationship or a contract.

Article 52 (Property rights in goods in transit)

  • The law of the place of destination governs property rights in goods in transit.

Article 53 (Adverse possession of personal property)

  • The law of the State where personal property is located upon completion of the period of prescription governs adverse possession of it.p. 3371

Article 54 (Rights in intangible assets)

  • l. The law of the State where intangible assets are used governs rights in them.

Article 55 (Public notice of property rights)

  • The law of the State where an asset is located at the time property rights in it are created, transferred or terminated governs the giving of public notice thereof.

Chapter IX Gifts

Article 56 (Gifts)

  • A donor’s national law at the time of gift governs its making.

  • A donor may, by declaration expressed as part of its making, subject a gift to the law of the State of his/her residence.

  • A gift is valid as to form if so considered by governing substantive law or by the law of the State where it is made.

Chapter X Contractual Obligations

Article 57 (Contractual obligations)

  • The Convention of Rome of June 19, 1980 on the law applicable to contractual obligations, rendered effective in Italy by the law of December 18, 1984, No 975, shall in every case govern contractual obligations without prejudice to other applicable international conventions.

Chapter XI Noncontractual Obligations

Article 58 (Unilateral promises)

  • A unilateral promise is governed by the law of the State where it is made known.

Article 59 (Negotiable Instruments)

  • The provisions of the Conventions of Geneva of June 7, 1930 for the settlement of certain conflicts of laws in connection with bills of exchange and promissory notes which was rendered effective in Italy by the decree-law of August 25, 1932, No 1130, converted into the law of December 22, 1932, No 1946, and of March 19, 1931 for the settlement of certain conflicts of laws in connection with cheques which was rendered effective in Italy by the decree-law of August 24, 1933, No 1077, converted into the law of January 4, 1934, No 61, shall in every case govern drafts, promissory notes and bank checks.

  • p. 3372The above provisions also apply to obligations undertaken outside the territory of a contracting State or where such conventions provide for the application of the law of a noncontracting State.

  • The law of the State where the instrument was issued governs other negotiable instruments. However, obligations different from the principal obligation are governed by the law of the State where each such obligation was undertaken.

Article 60 (Agency)

  • Agency is governed by the law of the State where the agent has his/her principal place of business, provided he/she is acting in a professional capacity and that such principal place of business is known or knowable to third parties. Otherwise, the law of the State in which the agent predominantly exercises his/her powers in the specific case shall apply.

  • The creation of an agency is valid as to form if so considered by the law governing the substance of the agency relationship or by the law of the State where the agency is created.

Article 61 (Obligations implied by law)

  • Obligations arising from conducting the affairs of others without authority, unjust enrichment, undue payments and other obligations implied by law, if the present law does not otherwise provide, are governed by the law of the State in which the facts giving rise to the obligation have occurred.

Article 62 (Tort liability)

  • The law of the State where the event occurred governs tort liability there for. However, at the request of the injured party, the law of the State where the fact which caused the damage occurred shall apply.

  • Where a tort involves only persons who are all citizens and residents of the same State that State’s law shall apply.

Article 63 (Noncontractual product liability)

  • Product liability is governed, at the choice of the injured party, by the Law of the State of the manufacturer’s domicile or head office or by the law of the State where the product was bought, unless the manufacturer proves that the product was put into the stream of commerce in the latter State without his/her consent.

Title IV10 – Efficacy of Foreign Judgements and Legal Acts

Article 6411 (Recognition of foreign judgements)

  • Foreign judgements shall be recognised in Italy without need for resort to any proceedings when:

    • the foreign judge rendering the judgement had jurisdiction according to Italian jurisdictional principles;

    • the defendant was given notice of the complaint in accordance with forum law and essential rights of defence were not violated;

    • p. 3373the parties appeared in accordance with forum law or default was declared in accordance with that law;

    • the judgement is res judicata where pronounced;

    • the judgement is not in conflict with another judgement rendered by an Italian judge which is res judicata;

    • there is no proceeding pending before an Italian judge involving the same subject matter and between the same parties which began before the foreign proceeding;

    • the effects of the judgement are not contrary to public order.

Article 6512 (Recognition of foreign judgements and judicial orders)

  • Foreign judgements and judicial orders relating to capacity of persons or on the existence of family relations or rights of the person shall be effective in Italy where they are pronounced in the State whose law the present law would apply or produce effects in that State, although pronounced in a third State, provided they are not contrary to public order and that essential rights of defence have been observed.

Article 6613 (Recognition of foreign judgements and judicial orders in non-adversary proceedings)

  • Foreign judicial orders in non-adversary proceedings shall be recognised without further proceedings provided the conditions set out in art 65, if applicable, are met when they emanate from the authorities of the State whose law the present law would apply or produce effects under the law of that State, although emanating from the authorities of a third State, or when they are pronounced by an authority which is competent on the basis of criteria corresponding to those used by Italian law.

Article 6714 (Implementing foreign judgements and judicial orders in non-adversary proceedings and contesting recognition)

  • If a foreign judgement or judicial order in non-adversary proceedings is not voluntarily complied with or its recognition is contested or if it is necessary to proceed with judicial enforcement, an interested party may request the court to ascertain whether the requisites of recognition exists.15

    • 1-bis. The controversies of par. 1 are governed by art 30 of legislative decree n. 150, of September 1, 2011.16

    • The foreign judgement or judicial order in non-adversary proceedings, together with the decision that the requisites of recognition exist, constitute the necessary written instrument for the implementation and judicial enforcement of the judgement.

    • If a foreign judgement or judicial order in non-adversary proceedings is contested during the course of another proceeding, the judge shall decide the issue with effects limited to that other proceeding.

    p. 3374

Article 6817 (Implementation and judicial enforcement of foreign public acts)

  • The rules set out in art 67 also apply to the implementation and judicial enforcement in Italy of foreign public acts18 if they are self-executory in the foreign State.

Article 6919 (Discovery in Italy pursuant to orders of a foreign judge)

  • l. Decisions and orders of foreign judges with respect to examination of witnesses, ascertaining technical facts, decisory and similar oaths, requests for admission or other means of discovery which are to take place in Italy are rendered effective by decree of the court of appeals in whose jurisdiction such discovery is to occur.

  • If discovery is requested by an interested party, the application shall be filed with the court together with a certified copy of the decision or order mandating discovery. If aid in discovery is requested by a judge, the request must be transmitted through diplomatic channels.

  • The court shall deliberate in chambers and, whenever the request is granted, shall send the relevant documentation to the proper judge.

  • The court may authorize types of taking of proofs or preliminary discovery proceedings not available under Italian law provided they do not violate the principles thereof.

  • Taking of proofs or preliminary discovery proceedings shall be carried out in the manner provided by Italian law. However, the forms expressly requested by the foreign judicial authority shall be observed insofar as compatible with the principles of Italian law.

Article 7020 (Aid in discovery requested through diplomatic channels)

  • l. If the request for aid in discovery is made through diplomatic channels and the interested party has not retained an attorney to prosecute the matter, the judge in charge of the proceeding shall issue the necessary orders from the bench and the clerk shall request service thereof.

Article 7121 (Serving notice of legal acts of foreign authorities)

  • If a summons to appear before a foreign authority or a notice of a legal act originating in a foreign State is to be served, the pubblico ministero attached to the tribunal within whose jurisdiction such service is to be made has exclusive jurisdiction to authorize such service.

  • Service requested through diplomatic channels is the responsibility of the pubblico ministero and is carried out by a judicial officer at his/her request.

  • Service shall be made in accordance with the formalities of Italian law. However, the procedures requested by the foreign authority shall be observed insofar as compatible with Italian law. In any event the person in charge of serving a notice or summons may effectively deliver it if the addressee accepts it voluntarily.p. 3375

Title V – Transition and final provisions

Article 72 (Transition provisions)

  • The present law applies to all cases initiated after its effective date except that preexisting rules of conflict of laws shall apply to factual situations complete before that date.

  • An Italian judge shall decide a pending case if the facts and the legal rules which determine jurisdiction occur or become effective during the course of the case.

Article 73 (Repeals)

  • Articles 17 through 31 of the provisions on the law in general preceding the Civil Code as well as arts 2505 and 2509 of the Civil Code and arts 2, 3, 4 and 37, second paragraph, of the Code of Civil Procedure are repealed; arts 796 through 805 of the Code of Civil Procedure are repealed effective December 31, 1996.

Article 74 (Effective Date)

  • This law becomes effective on September 1, 1995; arts 64 through 71 become effective on December 31, 1996.

Translation by Alberto Montanari (Milan Bar) and Vincent A. Narcisi (New York and California Bars), updated as of 5 November 2015, based on their translation first published in: Conflict of Laws in Italy: The Text and an English translation of Italian Law No 218 of May 31, 1995 (Reform of the Italian System of Conflict of Laws): The International Conventions Referred to in the Law (Kluwer Law International 1997). The editors wish to thank the translators and Kluwer Law International BV (<www.WKLawBusiness.com>) for the permission to use the translation.

Translators’ note: Under art 5 of the Italian Code of Civil Procedure an Italian judge considers the law in force and the factual situation existing at the time of filing of the complaint in deciding whether he/she has jurisdiction.

Translators’ note: This article refers to rights to one’s image, one’s name, etc.

Translators’ note: The text of art 33 was replaced by art 101.1 a) of Legislative Decree no 154 of 28 December 2013.

Translators’ note: Art 34 was repealed by art 106.1 c) of Legislative Decree no 154 of 28 December 2013.

Translators’ note: The heading and par 1 of art 35 were modified by art 101.1 b) of Legislative Decree no 154 of 28 December 2013.

Translators’ note: Art 36 was modified by art 101.1 c) of Legislative Decree no 154 of 28 December 2013.

Translators’ note: Art 36 bis was inserted by art 101.1 d) of Legislative Decree no 154 of 28 December 2013.

Translators’ note: Para 1 of art 38 was amended by art 101.1 e) of Legislative Decree no 154 of 28 December 2013.

Translators’ note: Arts 64–71 became effective on 31 December 1996. See art 74.

Translators’ note: See footnote 10.

Translators’ note: See footnote 10.

Translators’ note: See footnote 10.

Translators’ note: See footnote 10.

Translators’ note: Para 1 of art 67 was amended by art 34.38 a) of Legislative Decree no 150 of 1 September 2011.

Translators’ note: Para 1 bis of art 67 was inserted by art 34.38 a) of Legislative Decree no 150 of 1 September 2011.

Translators’ note: See footnote 10.

Translators’ note: In Italy, a ‘public act’ (ie, a document drawn by a notary public or other authorized public officer) is equivalent to the decision of a judge ‘with relation to money obligations contained therein’ (art 474 of the Italian Code of Civil Procedure) and may be enforced without a judicial proceeding.

Translators’ note: See footnote 10.

Translators’ note: See footnote 10.

Translators’ note: See footnote 10.