‘Arrivederci Roma … I’m off to sue in London’
Italy is one of the most beautiful countries in the world, it has beautiful weather, beautiful food, some of the most historic and beautiful works of art ever created by man, fantastic sports cars and fashion and a brilliant football team. However, it is plagued by a bureaucratic and cumbersome legal system that makes litigating in Italy extremely unattractive.
It is no exaggeration that the most straightforward of legal disputes (claims ranging between £5,000 – £10,000) take approximately ten years to resolve. It is not the law itself which is a problem in Italy, but simply the civil process. The criminal process is no better but that is for another day and another article.
Anyone that is thinking of doing business in Italy or contracting with Italian parties should keep at the forefront of their mind the problems that they will encounter if sadly they have to utilise the Italian legal system.
I have regularly advised clients to avoid litigation in Italy at all costs and whenever there has been a dispute between contracting parties, the advice that I have always given and will continue to give for quite some time is to try and resolve the dispute amicably without recourse to the Italian courts.
As the English civil legal system is by far speedier (although much more costly) any company or individual contracting with parties in Italy should try and ensure that there is a jurisdiction clause in the contract making clear that any dispute in respect of the contract should be arbitrated upon in England.
It is safe to say that an Italian contracting party would object to such a clause but once the party concerned is made aware that the legal process is quicker, the Italian contracting party may very well take a different view.
Thus, in order to avoid disputes as to where the contract is formed namely Italy or England, a jurisdiction clause is always the best way forward. That jurisdictional clause should expressly state that the contract will be subject to the laws of England and Wales and the jurisdiction of the courts.
Alternatively, the clause can state that the courts of England and Wales will have jurisdiction but the contract will be subject to Italian law. In other words, one can have the benefit of the English civil legal system but at the time invite the Court to apply Italian law.
As in most clauses in contractual dealings, such a jurisdictional clause will be open to negotiation and discussion but every effort should be made to avoid litigating in Italy if at all possible.
Most in Italy will agree that the Italian civil legal system is in desperate need of reform and steps are being taken to make the civil legal system quicker when it comes to the administration of justice. However, reform is unlikely to be in place for several years.
In summary, any party contracting with a company or other individual in Italy should use their best endeavours to ensure that a jurisdictional clause is in the contract granting jurisdiction to the English courts. A contract with no jurisdictional clause should be avoided at all costs. As regards convincing the Italian counterpart of the benefits of an English jurisdictional clause, persuasion is the key.
Julius Caesar when crossing the Rubicon contrary to Roman law knew that by the time he was before a Court, he would have gobbled up all of the Roman Empire.
The famous scribe who recorded Caesar’s famous words made an error. He didn’t say veni, vidi, vinci which means I came, I saw, I conquered, but in fact said veni, vedi, vinci lex loci, namely I came, I saw, I conquered the local legal system!!!
You have been warned!!