What is it and what are the powers of the Court of Companies: new for 2012

The Courts of companies

With the maxi-amendment to the Decree Law. n. 1/2012 the Government has inserted Article. 2 dedicated to the Court of companies. The Sections until now responsible for industrial and intellectual property will be henceforth responsible for "business." What advantages and problems for businesses and citizens?

Cristiano Alliney

Are not yet completely understood the scope and consequences of the decree that established the "Courts of the enterprise", but already the industrialists and their customers-wiser-prepare for the worst, because one thing is certain: the "litigation" in the field of industrial law will be much longer and much more expensive.

Article 2 of Decree-Law 1 of 2012, on the subject of "deregulation", spoke about the fact Sections specialized in Intellectual Property, turning them into "Courts enterprise" and give them a very extensive functional competence (perhaps too large) that adds to the competence of trademarks, designs and patents, trade secrets, unfair competition and copyright issues and contains a plurality of different materials ranging from collective actions for damages (class action), major corporate disputes.

Without going into detail of the decree and limitandcii to cite the most significant innovations, the sections have now become responsible for:

a) "Class-action" under Article 140-bis of Legislative Decree 6 September 2005, n. 206;

b) causes between shareholders and companies, including those in which the shareholder status is the subject of the dispute;

c) cases relating to the transfer of equity interests or any other store concerning the equity interests or rights inherent;

d) grounds for appeal of deliberations and decisions of governing bodies;

e) cases relating to shareholders' agreements;

f) lawsuits against members of the administrative or control the liquidator, the general manager or the manager responsible for preparing the corporate accounting documents;

g) cases relating to public procurement contracts for works, services or supplies of Community relevance, where there is the jurisdiction of the ordinary courts. "

Have been other cases of functional competence less significant, but this series of new and specific powers, combined with the duplication of costs (the unified to enroll due to a role was in fact doubled, and, in the first draft government had been quadrupled) and the position taken by the Government, which has announced that it can not expand the workforce, can not but raise some concern about the future of the industrial dispute in Italy.

Until now, in fact, the specialized sections in Italy in the field of intellectual property could produce sentences with the relatively faster than those of ordinary sections: on average in the first instance the average duration of proceedings was about 780 days, compared 960 the ordinary courts of law, while in the appeal were recorded almost "acceptable" 1450 days of media against the 1,509 of the ordinary courts. But now the number-and especially the complexity of the causes-the role of the judges of the "Courts of enterprises" will prevent to maintain a faster pace than in the ordinary courts.

Just think of the great importance that will have "class-action" (which among other things, damages are being all and only pure matter of civil law and the better it would have been an ordinary Court) in the system, or the sensitivity of legal of cases concerning contracts, or the huge number of disputes relating to the appeal of deliberations and decisions of governing bodies.

It seems evident that these new courts can be brought to implode, in consideration of an increasing number of processes, among other very sensitive to the nature or the petitum, which will not be counterbalanced by an increase of the organic. On this point also the National Bar Council weeks ago issued a statement in which he declared that "the distraction of judges in the courts of the companies further impoverish the staffing of judicial offices, since the measure does not target additional resources." The Council also covertly criticized the aforementioned increase of the unified whose only reason seems to lie in an attempt to bring down the demand for justice by focusing on costs, with a violent compression of the right to justice, especially for individuals and SMEs.

The real point, perhaps, is that you continue to make the judges 'specialized' as if by magic. When (in 2003) were set up by the sections you chose to solve the reform decree shots, giving in practice to a section of ordinary Court also the function of the Specialized industrial property, from one day to another. In practice, the courts continued to carry out the usual duties, but being "specializing in industrial matters" as they tended to causes related to this field of law.

The specialization, however, involves the strategic choices and the costs that go quite well: in training, the facilities, the continuous training of judges, in order to allow you to focus, as he has written a brilliant colleague, "so, if not exclusive, overwhelmingly, to an ever more demanding specialization, which requires - alongside the traditional legal knowledge - knowledge in the field of economy, trade and international practices, languages and legal systems different from ours. "

But this is far from the ideas of the Legislature in recent years and get a different perspective will take time, pace of Italian companies.

23/04/2012

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Translated via software

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Source:

Italian version of ReteArchitetti.it