How to serve an Italian judicial document in the United States under Subsection (a) of Article 10 Hague Service Convention

Summary + judicial document + Relazione di Notifica; or judicial document + convenience translation + Relazione di Notifica

Stella, a friend of mine, who practices as a trainee solicitor in a law firm in my town, recently asked me to help her serve an Italian court order on a defendant domiciled in the US.

The court order she had to serve was a sc. decreto ingiuntivo, an order issued by a judge following a summary ex parte proceeding, directing a party to pay or deliver, sought by who claims a specific sum of money, or a specific amount of fungible goods, or the right of being delivered with a specific movable, and granted to who provides a written evidence of his claim (see Articles 633 and ff. Italian Civil Procedure Code). Where the court order is issued, the claimant must serve it on the defendant, who may challenge it within 40 days or else it becomes enforceable.de

Given the meagre value of the claim, Stella was looking for the cheapest way to serve the judicial document, which I suggested was serving it by mail under Subsection (a) of Article 10 1965 Hague Service Convention (“Provided the State of destination does not object, the present Convention shall not interfere with a) the freedom to send judicial documents, by postal channels, directly to persons abroad (…)”) (1).

Both Italy and the US are parties to the Convention, which respectively came into force on the 24th of January 1982 and on the 10th of February 1969 (2).

Though the US has made no objection as to Article 10, I warned Stella that, in the light of the case law of the Italian Court of Cassation, serving judicial documents by that means to the United States may raise an issue.

Article 8 Italian Law No 890 of the 20th of November 1982, provides that where a judicial document is sent by registered letter with return receipt and the recipient does not pick it up, he may do so within 10 days, by collecting the letter at the local post office, or else the judicial document will be considered as having been actually served on him.

By its judgment No 7307 of the 26th of March 2010, the Second Division of the Italian Court of Cassation, came to the conclusion that the mechanisms provided for in Article 8 does not apply where the registered letter with return receipt containing the judicial document is sent abroad, since foreign postal offices do not comply with the requirements set in that Article, which are purported to grant the recipient. In particular, the Supreme Court, held that such a mechanism could not apply in the case of Florida, where uncollected registered letters are held at the local post office only five days.

I thus warned Stella that if the recipient did not pick up the registered letter, nor collect it at the local post office, then the judicial document therein enclosed could have not been considered as having been duly served.

This notwithstanding, Stella decided to try and serve the judicial document by registered mail.

Hence, we filled in the “Summary of the document to be served” (3), which, though recommended by the Fourteenth Session of the Hague Conference (4), is not compulsory when serving judicial documents under Article 10. Under the summary we then attached the application for the court order and the court order itself, and under that we further attached a convenience translation I made.

The reason why I suggested to attach a convenience translation is the following.

In its judgment No 3919 of the 17th of February 2011, the First Division of the Italian Court of Cassation, specified that, unlike Article 5 thereof, Article 1965 Hague Service Convention does not require that the judicial document be translated in the language of the place where it ought to be served. In the case settled by the Supreme Court, actually the claims made by the addresee of the judicial document were deemed wholly ungrounded, insofar as the document had actually been translated.

Hence, the reason why I suggested to attach a convenience translation under the court order was to avoid the defendant from challenging that a translation is needed under Article 10.

Therefore, under the summary, the application for the court order, the court order itself and the convenience translation, we attached the sc. “Relazione di Notifica”, a document that is filled in by the Italian judicial officer and usually worded as follows: “Today, the [date], as requested by [name of the claimant], represented, defended and domiciled as specified above, the undersigned [name], judicial officer at the First Instance Court of [name of the competent court], has served the above application for the court order and the identical court order on [name of the defendant], domiciled in [address where the defendant is domiciled] and therein by mail”.

We stapled all documents together, in the order detailed above, and Stella went to the judicial officers at the First Instance Court of Asti, who then sent the judicial document by registered mail. What Stella told me is that the judicial officers in Asti told her to remove the summary, since the judicial document was provided with a convience translation.

We still don’t know whether the judicial document has been collected by the recipient, I’ll keep this post updated.

(1) The 1965 Hague Service Convention is available at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=17

(2) The status table of the 1965 Hague Service Convention is available at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=17

(3) The “Summary of the document to be served” is available at: https://www.hcch.net/en/publications-and-studies/details4/?pid=6560&dtid=65

(4) https://www.hcch.net/en/publications-and-studies/details4/?pid=26&dtid=2

Advertisements

Milan Court of Appeals, 8th February 2013 (A.G. Alvalle S.A. v. Eichweber R. and Eichweber G.)

Under Art. 14 IPILA, which enshrines the iura novit curia (i.e. “the judge knows the law”) principle, the judge must ascertain the contents of the foreign law in order to assess whether or not the requirement of reciprocity is met, under Art. 16 Preliminary Provisions.

The contract for the purchase of an immovable situated in Italy by a Swiss company is null under Art. 16 Preliminary Provisions, since, in similar circumstances, an Italian company may not buy an immovable situated in Switzerland.

Facts

In 1999, a Swiss company entered into a contract for the purchase of an immovable situated in Italy. Among other provisions, the contract read: “the buyer, a Swiss company […], states that the purchased immovable will be used as the company’s seat. This statement is also made to meet the requirement of reciprocity between Italy and Switzerland, in compliance with Art. 16 of the [Preliminary Provisions to the Law: hereafter, “Preliminary Provisions”]”.

The Swiss company later brought a claim under the contract to the Como District Court.

In 2006, the seized court, of its own motion, ascertained that the requirement of reciprocity provided for in Art. 16 Preliminary Provisions had not been met and thus dismissed the claim.

In 2013, the losing party challenged the decision before the Milan Court of Appeals, which eventually quashed the appeal on the following grounds.

Decision

Before the  Italian Private International Law Act (hereafter “IPILA”) was passed, Italian domestic conflict of laws provisions were found in the Preliminary Provisions. Once the IPILA entered into force, these earlier provisions were amended, a part from Art. 16 Preliminary Provisions.

Art. 16 Preliminary Provisions provides for the requirement of reciprocity, whereby the national of a foreign State may enforce civil rights in front of Italian courts, as far as Italian nationals are allowed to enforce similar rights in front of the courts of that foreign State. The provision, which is headed “Treatment of the foreigner”, stipulates: “[1] The alien is entitled to the civil rights attributed to citizens on a condition of reciprocity and save for the provisions contained in special laws. [2] This provision also applies to foreign legal persons” (AN: translation provider by the Italiano Ministry of Foreign Affairs on its website, see link below)

As underlined by the appelate court – by quoting a judgment rendered by the Full Court of the Court of Cassation (No. 07/24814) – reciprocity does not affect jurisdiction, but rather the right whose enforcement is sought by the foreign national.

If the requirement is not met, in cases where a foreign national seeks to enforce a contractual right, the related contract will be declared null and his claim will be thus dismissed.

When disputes arise as to whether or not there is reciprocity, the national of the foreign State must prove that the right he seeks to enforce may be enforced by an Italian national in the courts of that foreign State.

He may prove this by any means, for instance, by submitting official documents (i.e. an affidavidit) by a public authority of the foreign State.

It is here that the role of the judge comes into play: Art. 14 IPILA allows him to – or better, requires him to – assess whether or not the requirement of reciprocity is met, by collecting, of its own motion, information as to the foreign law concerned.

Actually, Art. 14 IPILA reads: “[1] The judge ascertains of its own motion the foreign law. To such aim he may avail himself, a part from the instruments provided for in international conventions, of information provided by the Ministry of Justice; he may as well consult experts and specialized institutions. [2] Where the judge is unable to ascertain the foreign law, not even by the assistance given by the parties, he applies the law which is applicable by reason of other connecting factors existing in the same legal case. In the absence of that, Italian law applies”.

In the present case, the court noticed that, when the contract was made, under Swiss law, a foreign national could buy an immovable situated in Switzerland, to be used as a private dwelling, only if authorized by the competent Swiss canton. On the opposite, Swiss law allowed the purchase of immovables situated in Switzerland, regardless of any authorizations, where the foreign national purported to use such immovable for business purposes.

In other words, an Italian national could not buy a home in Switzerland, unless authorized by the local Swiss authority.

Actually, during the taking of evidence, the court ascertained that, in spite of the statement made in the contract, the Swiss company had not used the immovable situated in Italy as its legal seat and thus for business purposes.

Conclusion

Therefore, the court maintained that the requirement of reciprocity had not been met: Art. 16 Preliminary Provisions prevented the court from upholding a contractual claim made by a Swiss national under a contract that an Italian national, in similar circumstances, could have not enforced before a Swiss court. As a consequence, the sale contract whose enforcement was sought, was declared null and thus the appeal was quashed.

By the way, no relevance was given to the claim the Swiss company made that Swiss law was about to be amended, so as to allow foreign nationals to buy immovables situated in Switzerland regardless of any authorization.

Short comment

Surprisingly or not, Art. 16 Preliminary Provisions pursues a praiseworthy purpose: it is intended to protect Italian immigrants. In fact, the rule was introduced in the Italian law system in 1942 (Royal Decree of the 16th of March 1942, No. 262), soon after mass migration of the Italian people to the United States. By this codified form of retaliation, the Italian legislator pursued to encourage foreign States to recognize Italian immigrants same civil rights as those enjoyed by natives of the host State.

In domestic private international law rules of other European States, where considered, reciprocity comes into play when recognizing and enforcing judgments rendered by courts of Third States, but rather not when it comes to assessing whether or not a foreigner may enforce civil rights. Art. 16 Preliminary Provisions is thus an original model, one which has not been copied by any known legal system. Nonetheless, this instrument should be reconsidered and could inspire uniform private international law. For instance, under Art. 33 Regulation (EU) No. 1215/2012, in cases of parallel proceedings, the courts of a Member State may oust jurisdiction in favour of those of a Third State, when proceedings before the latter grant a “blurry” standard of trial fairness. This said, another possible solution – inspired by Art. 16 Preliminary Provisions – could be the one of allowing the courts of Member States to oust jurisdiction in favour of Third States only where proceedings comply with the standards of the former courts. This, by the way, could encourage Third States to adopt higher standards of trial fairness.

Futhermore, Art. 16 Preliminary Provisions does not apply when special law so provides. In particular, the main exceptions are provided for in Legislative Decree of the 25th of July 1998, No. 286, where, among the rest, it is provided that European Union nationals enjoy civil rights regardless of whether the requirement of reciprocity is met. In general terms, where nationals from Third States are involved, the assessment is made unless an international covenant exempts from doing so.

In conclusion, a last remark is that, though Art. 16 Preliminary Provisions has a limited scope of application, it could soon restore its former glory with Brexit…

See also

English notes on the requirement of reciprocity by the Italian Ministry of Foreign Affairs:

http://www.esteri.it/mae/en/ministero/servizi/stranieri/condizreciprocita/

Court of Cassation, Full Court, 19th September 2017, No. 21622 (Sociomantic Labs GmbH v. 6sicuro S.p.a)

Forum selection clauses in general terms and conditions published on a websites are valid and enfroceable under Article 23 Regulation (EC) No. 44/2001.

Facts:

6sicuro S.p.a. (hereafter, “6sicuro”), a company having its leagl seat in Italy, entered into a contract with Sociomantic Labs GmbH (hereafter, “Sociomantic Labs”), a German company, whereby the latter undertook to provide the former advertising services on the web.

The contract was made through the exchange of emails and the client signed the related confirmation order, where the link to the general terms and conditions published on the service provider’s website was mentioned.

On February 2016, 6sicuro sued Sociomantic Labs before the Milan Distric Court, claiming it had suffered damages from the alleged breach of contract by the service provider.

The defendant did not appear before the sezied court, but rather submitted a pleading to the Court of Cassation (a sc. ricorso per regolamento preventivo di giurisdizione), seeking for a declaration of lack of jurisdiction of Italian courts, on the grounds of the choice of Berlin courts made in the general terms and conditions that the claimant in main proceedings had agreed upon.

6sicuro challenged the plea by stating that the general terms and conditions where contrary to Directive 2000/31/EC, that the forum selection clause had to be considered as “non existent”, since it was nowhere to be found in the general terms and conditions that had actually been agreed upon when the contract was entered into, and that, in any case, the clause lacked of the formal requirements provided for in Art. 23 Regulation (EC) No. 44/2001 (as replaced by Art. 25 Regulation (EU) No. 1215/2012).

Decision:

The Court of Cassation held, in the first place, that the forum selection clause had to be construed as being exclusive for the purposes of Art. 23 Regulation (EC) No. 44/2001, which indeed applied in the present case since – according to the court – Regulation (EU) No. 1215/2012 applies only to contracts made after the 10th of January 2015, pursuant to Art. 81 thereof.

Secondly, by quoting the European Court of Justice (ECJ, judgment of the 21th of May 2015, C-322/13, Cars on the Web), the court held that the forum selection clause complied with the formal requirements mentioned in Art. 23(1) Regulation (EC) No. 44/2001. In particular, the jurisdiction agreement was entered into by an electronic means which provided a durable record of the same, considering that the general terms and conditions could have been printed and saved before entering the contract.

Nonetheless, 6sicuro averred that its counterparty had not provided sufficient evidence as to the fact that the general terms and conditions could have been printed and saved, nor that the latter were made available on the website when the contract was made, and neither that their text was actually the same as the one submitted in court.

These statements were deemed ungrounded, given that, on the one hand, when signing the confirmation order, 6sicuro stated it had read the general terms and conditions published in Sociomantic Labs’s webiste, and, on the other hand, the Italian company had sent a complaint letter where the same general terms and conditions were mentioned.

Furthermore, 6sicuro’s claims were not upheld by the court since the company had not maintained that the forum selection clause had been changed over time, but rather that the whole general terms and conditions had.

Thirdly, the court dismissed 6sicuro’s argument that the forum selection clause had to be specifically agreed upon, that Directive EC/2000/31 should have applied in the present case, that the clause had been poorly drafted and thus was misleading. As to the latter argument, in fact, 6sicuro underlined that the clause, which read “This contract is governed by German law. EU commerce law is excluded. Place of jurisdiction is Berlin”, had been poorly translated from German into English.

Conclusions:

In the light of all the above, the court concluded by stating: “Therefore, in the presence of a valid forum selection clause, having an exclusive nature, in favour of the judicial authority of a foreign country, the lack of jurisdiction of the Italian judge must be declared”.

Short comment:

This is the first time the Court of Cassation has considered the issue of forum selection clauses in general terms and conditions published on a website. Actually, a lower court, the Turin District Court had already faced the issue.

This said, the court applied Art. 23 Regulation (EC) No. 44/2001, when it should have applied  Art. 25 Regulation (EU) No. 1215/2012 instead, under Article 66(1) thereof. In fact, unlike Regulation (EC) No. 593/2008 (replacing the 1980 Rome Convention), to determine its scope ratione temporis, Regulation (EU) No. 1215/2012 does not take into account the date when the disputed contract was made, but rather the time when proceedings are commenced. In the present case, proceedings were commenced on the 18th of March 2016 and, according to the mentioned provision, Regulation (EU) No. 1215/2012 applies to claims filed from the 10th of January 2015 onward.

The court also confirmed that forum selection clauses need not to be specifically agreed upon (under Article 1341 Italian Civil Code).

Finally, though irrelevant for the purposes of the decision, indeed had the disputed forum (and law) selection clause been poorly translated. In fact, the German general terms and conditions of Sociomantic Labs (see https://www.sociomantic.com/tos/de/) provide for the exclusion of the CISG (“Es gilt das Recht der Bundesrepublik Deutschland unter Ausschluss des UN Kaufrechts”), that in the English version of the same general terms and conditions has been translated into the exclusion of a non existent “EU commerce law”.

See also:

Turin District Court, Company’s Division, court order of the 13th of May 2013, published in Rivista di diritto internazionale privato e processuale, No. 5/2015, pp. 567 and ff.