Maria Carolina Pulsoni

Transcription

1 Maria Carolina Pulsoni THE STANDARDIZATION PROCESS IMPACT ON THE EFFECTIVE JUDICIAL RELIFE AND REMEDIES IN AN AGE OF AUSTERITY (FOR A COMPARATIVE PERSPECTIVE OF A SUSTAINABLE JUSTICE) SUMMARY: 1. Introduction. 2. The distinction about action and relief in the Italian civil procedure law Alternative dispute resolution The enforcement and the provisional remedies The voluntary jurisdiction and the un- necessary jurisdictional protection. The administrative power role The abandonment of action The environment law perspective His relationship with the self- remedy measures Public Administration Liability for legitimate activity Conclusion. 1. Introduction. Anything is more unbelievable than a sought result. The global community of the civil justice scientists and the academic world assist to an unpredictable phenomenon in order to the effective judicial relief. The high level of research and the high level of standardization due to the efforts to unify different cultures seem to be unarmed in front of the global crisis. For this reason, each community empowers the strength of the standardization process on the principle that a global crisis requires a global solution. For those interested in practical juridical fields some of the questions, which arise, are: - What are the adequate or the dominant remedies in an age of Austerity? - What alternative forms of remedies are there? Are the reliefs an alternative? - What assumptions about the nature of remedies do the dominant reliefs reflect? - Is Austerity a consequence or a cause of the presumed ineffective relief? - Might we change the remedy or the relief? - Can a sustainable justice contribute to save human life in an age of Austerity? These are the questions that will be explored in this paper, which aims to research if a sustainable justice can contribute to help human life in an age of Austerity.

2 I shall try to show that there is a process of standardization and that in the process something of value could be lost. Leaving aside the issue by which the law should be the foundation of human life, we will try to demonstrate that there isn t any justice without a sustainable justice. The argument is too wide and present a paradox simultaneously. Is too wide because the subject of Austerity is a global issue. In this argument there s a paradox because only each State and even tough each individual can arrange the remedies. Narrowing the object of the enquiry we will start by the Italian civil procedure law perspective. Thereof the comparative perspective will be used only in his conventional meaning at the exclusive end to show the related international institutes. The preferred instrument of enquiry is the environment law for the reasons the will be explained up ahead. Austerity shows that all the perfect system of law is inadequate if it isn t sustainable. So we must do the definitive change. Austerity not only becomes an opportunity. Austerity is the new age. In consequence of that we must to go along the new road. During the last half age, civil procedure theories 1 have handled to improve and create more and more effective judicial relief. From the other side, scientists provided even more and more empowered remedies. It was a sort of binary duet in which each dancer played his role at the best. We do not inquire if the austerity is a consequence of that brilliant virtuosismo or the immanent cause that emerged suddenly: this is not the place. We want to show that the fourth aspect of the cause of action over the judicial relief, remedies and enforcement - is the sustainability of the civil action. This paper is divided in four parts. In the first part, all the theories about the cause of action will be passed in exam. His relationship to the effective relief and the enforcement are also considered. In the second part are showed the effective reliefs related to remedies and the problems inside the enforcement. This analysis involves the Italian enforcement process in which the right to jurisdictional protection is distinguished by the right who must be protected 2. 1 Picardi N., 2009 La crisi del monopolio statuale della giurisdizione e la proliferazione delle Corti, 20-21, in Corti Europee e Giudici Nazionali, Atti del XXVII Convegno Nazionale dell Associazione Italiana fra gli Studiosi del Processo Civile tenuto a Verona Settembre 2009, 5-47, Bononia University Press, Bologna. 2 I.E.: the case of opposition to the ordinary cognition and to the executive acts and so on. 2

3 In the third parts are reconstructed the alternative remedies - consisting in non remedies or in an abandonment of the relief. There are many kinds of institutes that demonstrate the ability of the system when it is too much heavy for the debtor. In the fourth part, the conclusions are showed. The limits of this paper are represented by the impossibility to conduct a comparative analysis. However, the proposed key lecture permits to pursue an idea of sustainable justice inside each legal system. The focus of research is not to identify new remedies or new reliefs. So in conclusion we will try to demonstrate if an abandonment or a relinquish of the action can generate a more positive effect than his relief. At the end we will expect to restore the value may be lost - according the idea that there is no justice without sustainability. 2. The distinction about action and relief in the Italian civil procedure law. This point aims to handle the issue of law and procedure; the law of remedies; the rights and remedies. About the distinction between relief and remedies 3 - it reflects the trade- off between efficacy and legitimacy which can not reduced to a simply dichotomy especially for his impact on the challenges generally applicable to the main contract and challenges specific to its arbitration clause 4. The civil procedure theories - formulated on the tutele differenziate 5 issue - about the difficulty of jurisdiction to afford certainty judgments are now taking place. In particular the standardization is acting throw the differentiation of the protection and the civil procedure measures but the goal to assure uniform measures everywhere make to lose the parity principle because creates homologation. 3 About the cause of action requirements: Bonsignori A Esecuzione forzata in genere, Dig. Disc. Privatistiche Sez. Civile, VII, 604, Utet, Torino; Proto Pisani A Sentenza di condanna, Dig. Disc. Privatistiche Sez. Civile, XVIII, 297, Utet, Torino; Verde G Principio della domanda, in Comm. cod. proc. civ., Libro I, a cura di Vaccarella e Verde, 738, Utet, Torino. 4 Berman G., The Gateway Problem in International Commercial Arbitration, The Yale Journal of International Law, Volume 37, Number 1, Winter 2012, 40; about limits and conditions of the arbitration clause: Nela 1999, 1610). 5 Montesano 1985 b Luci ed ombre in leggi e proposte di tutele differenziate nei processi civili, in Riv. Dir. Proc., Cedam, Padova,

4 About the expression tutele differenziate the Author 6 advises that it reflects the Italian Constitutional Law statement of the article 24 in relationship with the art. 3. The risk related to the differentiated processes7 or special rites resides not only in the unpredictability of the judgment8; but in a violation of the parity principle. However the evolution of this trend understood as an anticipatory threshold of the protection of the juridical measures brings to the homologation of the parity principle Alternative dispute resolution. Here is not the place to discuss the issue about the distinction between relief and remedy 9. It counts underscore the consequences based on that distinction in Italian Civil Procedure Law by legitimacy and cause of action 10. The end of the distinction between the remedy and the relief 11 is to demonstrate that isn t possible imagine predetermined conditions to the cause of action exercise. This argument presumes the cause of action as a civic right, which pre- exists and makes the cause of action exercise possible 12. For this reason each condition that is different by the right who must be protected is unconstitutional 13. Within this perspective the obligatory alternative dispute resolution clause represent a limit of the jurisdictional activity requirements 14. Above all, this reconstruction permits to affirm that the pre- existing cause of action right doesn t finish toward the exercise of the action. 6 Montesano 1985 b, Cass , n. 1588, RFI, 1972, 531; Cass , n , Guida al Diritto, 2004, 29, 64; Cass , n. 397, CED Cassazione Montesano 1985, On the extensive application of this principle in relationship with the arbitral awards or arbitraments: Caponi R. 2009, Corti Europee e Giudicati Nazionali, ( ) in Corti Europee e Giudici Nazionali, Atti del XXVII Convegno Nazionale dell Associazione Italiana fra gli Studiosi del Processo Civile tenuto a Verona Settembre 2009, , Bononia University Press, Bologna. 10 Montesano L. 1994, La tutela giurisdizionale dei diritti, , in Tratt. dir. civ. it. fondato da Vassalli, Utet, Torino. 11 Distinction based on the artt. 81 and 100 of the Italian Civil Procedure Code. 12 Montesano 1994, C. Cost , n. 127 and C. Cost , n Montesano 1994, 58-59; Picardi 2009, 22. 4

5 3. The enforcement and the provisional remedies. The main testing ground of each legal system is not the less of relief but the difficulty of his enforcement 15 with the related set of remedies 16 by whose depend the problem in order to the guaranties of the opposition proceedings 17. Scientists are aware that an excess 18 of specialized measures could generate a vicious circle related to the needing to provide remedies to the relief and the opposition remedies to the relief one 19. In reaction to the increasing needing of more effective relief, the arising studies on the civil preventive protection 20 are addressed to demonstrate the trend - in Italian jurisdictional system - to anticipate the jurisdictional threshold protection. The end of this effort is clear and results by the fields of law in which the threshold anticipatory is caught. It is symptomatic according these theories based on a complex reconstruction of the artt. 24 and 113 Italian Constitution that the trend concerns the process of labour; the Administrative Action Plan (2012, related to The Lisbon Treaty) and the safety labour laws. In particular, the threshold protection is anticipated at the grade of the objective liability (in the frame of the general civil liability ex art Italian c.c.) sanctioned by the art Italian c.c. 21. The phenomenon produces meaningful consequences on the power of judge to search the sources inside the labour rite or proceeding. The paradigm is offered by the art. 421 Italian civil procedure code, by which disposition the judge can dispose the direct access on the workplaces and acquire the sources towards 15 Verde 2002, 1141; Tomei 1996, 578. On the general limits about the enforcement of judgments Montesano L. 2001, Attuazione delle sanzioni e delle cautele contro gli obbligati a fare e a non fare (Diritto vigente e riforme opportune), 13, in Tecniche di Attuazione dei Provvedimenti del Giudice, Atti del XXVII Convegno Nazionale dell Associazione Italiana fra gli Studiosi del Processo Civile tenutosi a Lecce 4-5 giugno 2001, 9-28, Giuffré, Milano. 16 It s enough within this point of view and the preliminary discovery - to think at the difficulty descending by the art. 24 Conv. Bruxelles to affirm the provisional jurisdiction in order to the conservative evidence measures: Consolo 2009, About the assessment of evidence Chessa V., 2011, Arbitrators discretion and powers with respect to evidence, 60-61, in La Prova nell Arbitrato Internazionale, Atti del Convegno svoltosi a Roma il 5 febbraio 2010, Lapis Edizioni, Roma, 2011, Tomei 1996, About the amplified consequences descending by the competition between different juridical systems: Consolo 2009, 124 and the legal theories explanation over the abuse of the process: Scarselli G., 2012 Sul c.d. abuso del processo, 171, in L abuso del processo, Atti del XXVIII Convegno Nazionale dell Associazione Italiana fra gli Studiosi del Processo Civile tenuto a Urbino Settembre 2011, , Bononia University Press, Bologna. 19 Montesano 1994, 304, Basilico 2013, 111, Ziviz P., in Comm. cod. civ. diretto da Cendon, Sub art. 2050, 1755, Aggiornamento , 2002, Utet, Torino 5

6 interrogation 22. The system so outlined descends by the needing to protect the worker towards the self- executing judgment 23 (based on the artt. 1, 3, 4, 34 and 36 Italian Constitution 24 ). This system privileges a general protection model instead of a specialized one - even tough it represents a valid example of strengthened protection. Bringing to the extreme consequences this point of view we could imagine a system in which administrative and juridical power becomes interdependent as to seem demonstrate the recent Italian reform on the alternative procedural measures The voluntary jurisdiction and the un- necessary jurisdictional protection. The administrative power role. By the contemporaneous analysis of the previous points - I) differentiated protection 26 ; II) civil preventive protection 27 ; III) alternative dispute resolution - emerges that is possible to outline a third category of relief in which we find a voluntary jurisdiction committed to the administrative power 28. It s easy to reduce these measures to the provisional autonomous un- necessary ones 29 that could be handled by the judge under his voluntary jurisdiction power. However there s something anew in the recent civil procedure reform which can be lost. This lecture seems to be confirmed by the costs of action introduced by the art. 13, DL 132/14 and their effects on the cause of action exercise requirements. For now it s enough to say that the proposal distinction is different by the one between judgment on the merits and judgement not given on the merits The abandonment of action. Within this point of view could be easy to show that a renounce to the cause of action and his relief could be more convenient for the actor. 22 Montesano 1989, 157; Is the case of the first grade judgment, when it is in favour of the worker ex art. 431 cpc according the statement before the L. 12 novembre 2011, n Montesano 1989, DL 12 settembre 2014, n. 132 Misure urgenti di degiurisdizionalizzazione ed altri interventi per la definizione dell arretrato in material di processo civile in Gazzetta Ufficiale della Repubblica Italiana GURI del n. 212, Serie Generale. 26 Montesano 1994, 96, Basilico 2013, This distinction is different by the one between judgment on the merits and judgement not given on the merits (Montesano 1994, 102, 294, 296). 29 Montesano 1994, Montesano 1994, 102, 294,

7 It s not an economic matter but a practical evaluation, even tough it comports an economic loss. The actor could put at the stand of his intention to move in action others components (the risk to lose; the lasting of the proceedings; moral behaviour and pre- moral conditions). Here is not in objection the thinking about the quantitative extension of the cause of action 31. It reflects the principle of the action s availability 32 on which is based the liberty to move in action, which comprehends the liberty to not move too 33. The abandonment concept is widely diffuse in each juridical experience. Here it s count for his relevance as the power of the prominent part in every juridical relationship. Within this point of view achieves relevance the abuse of law in order to the art Italian Civil Code. Many institutes are known under this category in the procedural law field: abandonment or relinquish of the action in his extension of discontinuance and notice of discontinuance - until to the meaningful non- user. So near the abandonment of the claim we find the abandonment of appeal and the abandonment of excess - in order to remain within under the county court power (S. 41 of The County Courts Act 1959). The abandonment has most relevant efficacy for his ability to comprehend the negative profile of the right property especially when we speak about abandonment of good and abandonment of ship. At the same time is interesting to study the limitations of the abandonment power in the maritime habit: the argument is referred to the Limitation of shipowner s liability or the limitation of maritime claims. The needing to introduce limitation clause to the abandonment power bring us to a very strength evidence. The liberty to renounce to some right, power or another liberty is unlimited until we consider it in a vertical sense; but as soon as we shell try to put it in relationship with an horizontal extension especially with another unlimited power - the abandonment becomes impossible. This is the regime provided for the relinquishment of the ship in the maritime law. The impossibility to admit a relict in the extra- territoriality waters seems to respond to the certainty needing of the law. So the ownership can t abandon the ship in the extraterritoriality sea. The principle emerging by this rule seems to be that nobody can t abandon what doesn t belong to anyone or is situated in a place who doesn t belong to anyone how the extraterritoriality sea- waters are. 31 Montesano 1985 b, Focused on the art. 24 Cost. 33 Montesano 1994,

8 4.1. The environment law perspective. The abandonment right as elaborated in the maritime law represents a meaningful model for the relief and remedies in the environment law due to the limitation descendant by unlimited powers 34. The strength of standardization the liability clauses for the environment law could gain many principles by the maritime law even tough the causes of action in the environment law are at the opposite side. In the environment law, in fact, the main problem is represented by the damages structure and his legitimacy. Legal theories focus on: I) the diffusivity of the environment damage for affirm that is difficult to provide a relief when a damage is yet occurred; II) the form of reliefs in relationship to the remedies. The traditional reliefs 35 seems to be inadequate 36 in order the fact that the environmental damages especially in the mass disasters perspective doesn t know national borders 37. The environmental damage - even more the mass disaster, considered either as an act or as a fact doesn t obey to a voluntary action. For this reason it s difficult to find not only the relief but even tough the remedy. In consequence of the juridical difficult to standardize 38 the relief 39, the global community use the conventional agreement 40 to prevent the environmental damages or disasters. 34 I.e. the limitations of the ownership abandonment clause supra Inhibition relief, especially. For a transnational perspective, in order to the collateral estoppel and the iussue preclusion: Consolo C Il flessibile rapporto dei diritti processuali civili nazionali rispetto al primato integratore del diritto comunitario (integrato dalla CEDU a sua volta), 141, in Corti Europee e Giudici Nazionali, Atti del XXVII Convegno Nazionale dell Associazione Italiana fra gli Studiosi del Processo Civile tenuto a Verona Settembre 2009, , Bononia University Press, Bologna. 36 About the different forms of relief irreducible even tough quoad effecta: Consolo 2009, Quintessential about the extensive effects of the judgment: Consolo 2009, The problem remains unresolved for what concerns the techniques of standardization in the assessment of evidence in international arbitration: Blackman J. 2011, Evidence in International Arbitration: Practical and Tactical Considerations, 51, in La Prova nell Arbitrato Internazionale, Atti del Convegno svoltosi a Roma il 5 febbraio 2010, 47-53, Lapis Edizioni, Roma. 39 About the antisuit injunction effects, see Lupoi, M. A., 2009, Intervento al Convegno Nazionale dell Associazione Italiana fra gli Studiosi del Processo Civile tenuto a Verona Settembre 2009, 449, in Corti Europee e Giudici Nazionali, , Bononia University Press, Bologna. 40 See the Kyoto Protocol. Legal theories advise in order the risks related to the distinction between efficacy and legitimacy (Berman 2012, 40) and the limits of the arbitration agreements (Carpi F., 2012, L oggetto della convenzione arbitrale ed i suoi limiti, 26-27, in Atti dell incontro per la presentazione del 8

9 His relationship with the self- remedy measures. This trend accompanied by self- remedy measures 41 shows the sustainability justice due to necessity that all the powers of the legal system, included the not juridical one collect their strengths towards a global and common goal that is the environment safeguards. This form of relief also known as self- redress and self- help comprehends the set off and the lien. They are very important (especially the set- off) for what concerns the renounce to the cause of action related the which it represents a specific form of defence, consisting in a compensation measure. They must be distinguished by the self- executing acts even tough they share the compensative structure in the environment law field. Self- remedies and self- executing measures also have in common the provisional feature typical of the not self- executing constitutional provision relevant for the International Law Treaties 42. By this analysis descends that if the sustainability is possible for what is inside the legal system that is the more contain the less - than the less must be sustainable in turn. 5. Public Administration Liability for legitimate activity. The frame of the provisional remedies 43 would be incomplete without the relief against the Public Administration Liability for legitimate activity. Legal theories attention 44 focuses on the inhibition relief. This problem assumes meaningful importance under the enforcement 45 of the inhibition measures against the legitimate activity of the Public Administration 46. If we consider the above- mentioned limits descending by the artt. 612 and 613 of Italian cpc and by the art of Italian c.c. the issue results quite difficult. disegno sistematico dell arbitrato di Carmine Punzi, svoltosi a Roma nella Sala Vanvitelli dell Avvocatura Generale dello Stato il 22 maggio 2012, 25-32, Lapis Edizioni, Roma). 41 In order to the distinction between efficacy and enforcement: Cass , n. 1161, RFI, 1979, 430; in senso conforme Cass , n. 1585, RFI, 1973, 504; Cass , n. 6665, MGI, Legal theories are also interested to the remedies against the inactivity (Cerrato S Osservazioni in tema di operazioni infragruppo e di vantaggi compensativi, in GI, 1675). 42 Consolo 2009, Montesano 1985, Under the specific issue of the impossibility to act in executivis Montesano 2001, Basilico 2013, About the analysis related to the cases in which is involved the PA, Basilico 2013,

10 The argument is also too wide especially if we put it in relationship with the objective liability 47 for environmental damages in mass disasters 48. Narrowing the object of the inquiry to the point we interest to put in evidence a sustainable justice we discover that the seemingly limit of the problem represent his solution. Here is not the place to handle the interesting issue related to the technological decisions 49 descending by the environmental damages 50. It counts underscore that emerges a general liability related to the common interests from which depends the class (or representative) action 51. The background evidence that this argument (Montesano 2001, 40-41) delights is that there aren t effective reliefs (neither conventional; neither jurisdictional or transnational) if we don t pay attention about the will to protect the life good before the cause of action exercise requirements. In other words we touch a breaking point that shows us the needing to share the responsibility at all the levels according to the model of a self- help security. 6. Conclusion. Turning on the conclusion many are the unresolved questions that this paper arises. So they represent new hypothesis of work. Remedies and their efficacy - together to the alternative remedies solution afforded respectively in the second and in the third part - show that the less contains the more. The key of a sustainability justice emerges by the pre- existing cause of the conditions consisting in the power to bring about all the necessary requirements of the remedies. This power doesn t end towards the cause of action proposition; neither is limited by the jurisdictional activity exercises 52. It is strengthened when the plaintiff I) decides to not act 53 II) renounces to the action; III) tries to exercise his right before the process. 47 Cendon P., 1991, Dolo (Intenzione nella responsabilità extra contrattuale), 35-36, Dig.Disc.Privatistiche, Sez. Civile, 29-44, Utet, Torino; Ziviz P., in Comm. cod. civ. diretto da Cendon, Sub art. 2050, 1755, Aggiornamento , 2002, Utet, Torino. 48 Monateri P. G., 2002, Illecito e responsabilità civile, Vol. X, Tomo II, Giappichelli, Torino. 49 Patti S., 1987 Ambiente (tutela dell ) nel Diritto Civile, 294, Dig.Disc.Privatistiche, Sez. Civile, , Utet, Torino. 50 For a drafting proposal Pozzo B., 2002, La nuova responsabilità civile per danno all ambiente, 273, Giuffré, Milano. 51 Giussani A., 1996, Studi sulle class actions, Cedam, Padova, 30-31, , , 376; Berman 2012, Montesano 1994, For the different meaning of the non action cause in the insurance practice. 10

11 This reconstruction doesn t mean a pre- requisite of the jurisdictional protection: it corresponds to the demonstration of the civil procedure theories about the power of judge when it s affirmed that the judge can t substitute his judgment to the private individual will. From the other side this theory shows that the more effective juridical relief solution doesn t reside in an improvement of the private powers which are yet sanctioned by the law. The evidence of this conclusion is offered by the impossibility to admit a tertium genus between judgment on the merits and judgement not given on the merits 54. Evidence strengthened by the possibility of a non liquet judgment when there aren t the cause of action requirements. In consequence of that, if I) it s possible to argue that the judge can t substitute himself to the private will and turning down the Chiovenda saying - the process can give more than the plaintiff s right to have; II) and it s also possible to say that that the cause of action exercise: (A) doesn t exhaust the plaintiff right; (B) the judgment can t decide ultra petita partium ; (C) the renounce of the action doesn t extinguish the right; than it s possible to observe that Austerity is the more effective conservative and juridical relief. 54 This is the meaning of the azione concreta which reduces at unity the idea of the necessary and contentious jurisdiction together the un-necessary and voluntary one (Montesano 1994, 102, 294, 296; see also Berman G., 2012, 40 and on the institutional arbitration Picardi 2009, 22). 11