Jurisdiction without conflict? Remarks on non-adverse proceedings in Italy

Abstract

The subject. This essay describes the procedural treatment of non-contentious matters in
Italy. After a brief historical recount on the evolution of the concept of ‘non-contentious
jurisdiction’, from Roman law to the law in force, the chapter emphasizes the extreme variety
of non-adverse proceedings governed by the Code of civil procedure and special statutes
as well.
The purpose of the article is to understand the ‘default rules’ of non-adverse proceedings
(meaning the rules applicable insofar as the law does not ordain otherwise) provided by the
Code of civil procedure. These rules outline a procedure in chambers that is simpler and
less time-consuming than the ordinary one: for these reasons, the procedure in chambers
has been increasingly adopted for the judicial treatment of a few contentious matters, with
mixed results.
Methodology. The methodological basis for the study: general scientific methods (analysis,
synthesis, comparison, description); private and academic (comparative legal, interpretation,
formal-legal).
Results. It is difficult to foresee whether in the near future more attention will be devoted
by Italian legislators to non-contentious jurisdiction so as to lay down rules that are uniform
and consistent. In recent decades, Italian civil procedure has been re-written again and
again in the attempt to solve the most serious and enduring problem of the justice system,
namely, the excessive length of proceedings.
Conclusions. As far as non-contentious matters, in light of the notorious overload of Italian
courts the author believes that they could be handles more efficiently by administrative
authorities.