Roberto Oliva

Italian legal system is a civil law system: as a consequence, stare decisis doctrine does not apply in Italy.

However, it is well known that civil and common law systems have become closer to each other during the last decades.  On the one hand, from the point of view of common law systems, due to the increasing body of statutory law; on the other hand, from the point of view of civil law systems, because of the increasingly important role played by jurisprudential precedents (on this topic, see the interesting book edited by MacCormick and Summers, Interpreting precedents: a comparative study, also containing papers by the Italian learned scholar Michele Taruffo).

In this perspective, it is worth reading a recent decision of the Italian Supreme Court (Third Civil Chamber, decision No. 24649 of 3 October 2019, Italian text available here). Despite this decision does not concern arbitration matters, I found it very interesting and for this reason, I would like to briefly comment it.

The case heard by the Supreme Court, at the end of the day, is of little interest.

On the contrary, the doctrine laid down (as far as I know, for the first time) by the Supreme Court is very interesting.  Under this doctrine, pleading a case contrary to the settled case-law of the Supreme Court constitutes gross negligence. 

It could be maintained that the extreme consequence of this doctrine is that the settled case-law of the Supreme Court is binding.

Several questions arise. 

First of all, is this doctrine in compliance with the principles of our legal system and Italian procedural rules?  For instance, under Article 360-bis No. 1 of the Italian Code of Civil Procedure, the Supreme Court declares that an appeal is not admissible if it does not offer elements to change (or confirm) the Supreme Court’s case-law.  In other words, this procedural rule implicitly admits that it is possible to file an appeal before the Supreme Court, pleading a case contrary to the Supreme Court’s settled case-law, provided that there are suitable legal arguments supporting this case. 

In addition, in this framework, how could the case-law evolve?

However, the real question is whether the decision at hand would be the cornerstone of a new doctrine.  In the affirmative, I would definitely comment it again.

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