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Freezing Injunctions in Italy

February 26, 2014

In Italy, Article 671 of the Italian Civil Code permits a precautionary seizure of property if a creditor has a “valid fear of losing the security for his claim.” The order will prohibit the debtor from disposing of all of his assets and not just specifically identified ones. A freezing order can be granted if: 1) the Court is persuaded that the claim has a prima facie basis based on the documentary evidence presented, and 2) the Court is persuaded that should the measure be denied the time necessary to obtain a judgment on the merits may prejudice the right of the claimant. Based on case law, the Court must also be persuaded that the claim will be confirmed or ascertained in further legal proceedings on the merits and that the risk of prejudice is imminent (or has already started to produce its effects) and irreparable (the prejudice is unlikely to be remedied and/or recovered).

After submission of the application, a hearing will be scheduled where the court will render a ruling. No discussion on the merits of the case is allowed. The court can grant urgent interim relief if the timing of the hearing might cause some prejudice to the claimant. The interim relief is entered ex parte and will set a hearing 15 days later whereat the court can confirm, revoke or amend the interim decision.

The decision can be appealed within 15 days and the appeal decision will be taken within 20 days of the submission. The appeal does not suspend enforceability unless the appellate court decides, due to reason which have arisen since the interim order. The appeal decision is not subject to further appeal.

The court granting relief may also impose upon the claimant putting up security to protect the debtor in case the freezing order is later revoked or the merits of the case are decided in the debtor’s favor.

The freezing order must be executed within 30 days from the granting. If execution is not started within that time frame, the freezing order ceases to be effective. The freezing order will also cease to exist if the legal proceeding on the merits is not started within 60 days from the granting.

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