Drafting Techniques: From Recent Case-Law Contributions On Risk Of Inadmissibility Of Deeds With The Supreme Court To The Incentives Under Ministerial Decree 37/2018

The recent reforms addressing proceedings before the Supreme Court devote a great deal of attention to drafting techniques, since the strengthening of procedural filters, in accordance with the "nomophylaptic" function of the Supreme Court, poses certain risks of inadmissibility, including new ones. On the other hand, there is also a tendency towards promoting the use of IT and electronic systems to ensure more rapid and substantially fairer proceedings.

Inadmissibility of deeds with the Supreme Court

As a result of the reforms addressing proceedings before the Supreme Court from 2006 onwards, in an attempt to reaffirm the Supreme Court's «nomophylaptic» function, the concept of «inadmissibility», originally associated to merely formal-and-procedural aspects (Articles 365 and 366 of the Italian Code of Civil Procedure: expiry of the deadlines for challenging, lack of interest in challenging or legitimacy to challenge) has broadened to include pretty material aspects.

In 2009, as a result of the repeal of the so-called «question of law » (Article 366 bis of the Italian Code of Civil Procedure), besides the standard cases of «procedural» or «traditional» inadmissibility, a further type of inadmissibility was introduced under Article 360 bis of the Italian Code of Civil Procedure, thus strengthening the «filtering» phenomenon.

Consequently, just by way of an example, any uselessly long-winded application (which unfortunately is often the «distorted» consequence of erroneous interpretation of the principle of self-sufficiency) now risks to be declared inadmissible, as any irrelevant objection shall be treated as failure to state reasons in breach of the statutory provisions of Article 366, paragraphs 3 and 4 of the Italian Code of Civil Procedure (Supreme Court's judgments 20910/17 and 11260/18).

The two-recently introduced cases of inadmissibility under Article 360 bis of the Italian Code of Civil Procedure relate to a requirement that is not merely formal but rather linked to the substance of the disputed issue: such cases should more consistently be linked to merits-related groundlessness than inadmissibility.

Limiting the scope of our analysis to paragraph 1 alone of Article 360 bis of the Italian Code of Civil Procedure, it should be noted that, by judgment 7155/17, the Joint Divisions of the Supreme Court opted for strengthening the filtering mechanism, indicating merits-related inadmissibility as an alternative to procedural...