L’effettività della tutela esecutiva e l’evoluzione delle misure coercitive nell'ordinamento interno. Strumenti di esecuzione indiretta, l'esperienza straniera e quella nostrana. Profili ricostruttivi dell'art. 614 bis c.p.c. I provvedimenti idonei a contenere la comminatoria dell’astreinte. La misura coercitiva in arbitrato.L’effettività della tutela esecutiva e l’evoluzione delle misure coercitive nell'ordinamento interno. Strumenti di esecuzione indiretta, l'esperienza straniera e quella nostrana. Profili ricostruttivi dell'art. 614 bis c.p.c. I provvedimenti idonei a contenere la comminatoria dell’astreinte. La misura coercitiva in arbitrato.LUISS PhD Thesi

Iuorio, Maria Assunta

LUISSearch

SUMMARY 
The study undertaken in the present thesis began from the analysis of the different means that our legal 
system adopted throughout the years to assure effectiveness of legal rights’ protection. Such prerogative 
finds its full legitimation in our Constitution that grants respect of the principle of “due process.” As a 
consequence, any discussion regarding the protection of such rights necessarily entails the analysis of the 
different means of protection offered by the legal system. The enforcement phase plays a crucial role in 
such system, since it has the specific goal to reach the effectiveness of the protection through judicial 
demand. Such protection would otherwise remain a dead sentence stated in a statutory provision. The 
undisputed acknowledgment of the judicial nature of the enforcement process inevitably entails the right 
of bringing judicial action in case of the debtor’s failure to fulfill his obligation, so as to have redress in 
relation to the breached legal right. This possibility is reflected in a Court’s judgment. From these 
concepts most scholars drew the principle that there can only be a court sentence when the legal system 
provided the possibility of enforcement, expressly excluding from the concept of enforcement any form 
of indirect coercion. However, this view soon appeared incompatible with a proper understanding of Art. 
24 of the Constitution, which, as well known, grants everyone the right to bring legal action to protect 
their own rights and legitimate interests. In fact, a strict application of the above mentioned theory leads 
to exclude protection for all of those situations where there is no mechanism of direct enforcement, such 
as obligations for non-fungible performances. Such setting of principles leads to the necessity of 
overcoming the correlation between court sentence and enforcement. And this goal can only be reached 
by breaking the theoretical link between court sentence and enforcement and therefore by extending such 
notion to every court order or disposition, including those related to non-fungible performances, which 
can still be fully enforced through different means and systems, such as indirect enforcement. Indirect 
enforcement is made possible through the application of the so called coercive measures, which are 
adequate penalties for delay in compliance, threatening the debtor with a harm bigger than the advantage 
he would acquire by failing to comply, so as to push him to comply with the court order. The need for a 
general civil coercive measure in our legal system has always been felt as a transversal need, until fully 
realized in the D.L. 27-6-2015 n. 83, then converted into in L. 6-8-2015 n. 132, modifying the previous 
art. 614 bis of the Italian Code of Civil Procedure (hereinafter also “i.c.c.p.”). originally introduced by L. 
18-6-2009 n. 69. The introduction of the new art. 614 bis i.c.p.c. was inspired by the institute of astreinte 
set forth in the French legal system. Whereas, the mechanisms of Art. 614 bis i.c.p.c. is significantly 
different from the provisions set forth in Germany and in England regulating penalties for delay in 
compliance. Therefore such provisions do not appear of any help in understanding and applying article 
614 bis i.c.p.c. The French legislator conceived the astreinte as a two-stage process. This can be easily 
inferred from Articles L.l3l-l a L.131-4 of the Code des procédures civiles d’exécution, which set forth 
the power of the judge to order a preliminary astreinte to be subsequently liquidated, notwithstanding the 
lack of an express legislative provision in this sense. With law n. 91-650, July 9, 1991, the French 
legislator gave the judge of the enforcement phase the power to order the astreintes to assure 
enforceability of any order and in 2011, gave even to arbitrators the power to issue an astreint. Notably, 
while on one hand the study of the experience of other countries with indirect forced execution helps in 
better understandanding the origin, contradictions, and difficulties of the Italian astreinte; on the other 
hand, pursuant to the principle of the prevalence of the special law over the general law, the important 
innovation of the astreintes did not undermine the importance of the different specific coercive execution 
measures which were already part of the Italian legal system and which continue to be applied. Among 
the most important penalties for delay in compliance introduced in the Italian legal system before the 
introduction of art. 614 bis i.c.p.c., it should be mentioned article 86, paragraph 1, of the so-called 
Invetions Law (“Legge Invenzioni”) and article 66, paragraph 2, of the so-called Marchi Law (“Legge 
Marchi”). Those provisions were then implemented in art. 124 of Code of Industrial Property; similarly, 
we must note art. 140 of Italian Consumer Code (corresponding to the previous art. 3, law 30 July 1998, 
n. 281, “Regulation of consumers and users’ rights” (“Disciplina dei diritti dei consumatori e degli 
utenti”), which provides an indirect coercive measure aimed at assuring the effectiveness of injunction 
orders issued to protect consumers’ interests. This said, the analysis of the historical evolution and of the 
rationale of Art. 614 bis i.c.p.c. appeared of fundamental importance for the study of the new 2015 
reform: its title “Misure di coercizione indiretta” and its applicability to assure the fulfillment of all types 
of obligations, with the only exception of pecuniary obligations. The measure at issue has been addressed 
differently by scholars: according to some of them it is a subjective right, according to others it is also a  
procedural one. With sentence dated April 15, 2015, n. 7613, the Supreme Court clarified that pecuniary 
compulsory measures represent a mean of protection, i.e., a technical tool aimed at strengthening the 
court sentence so as to facilitate its enforceability. From the  incipit of art. 614 bis i.c.p.c. (“Con il 
provvedimento di condanna, il giudice...”), the doctrine derived the possibility to issue the measure for 
any type of order with a condemnation nature coming from a judicial authority. Therefore, on one hand, 
scholars tried to understand if the “provvedimenti cautelari” and the “verbale di conciliazione” can be the 
basis for issuing anastreinte. On the other hand, scholars examined the related institute of Art. 709 ter 
i.c.p.c., dealing with the protection of minors and the late compliance penalty contained in the code of 
administrative procedure. As a consequence, it was possible to solve the last hermeneutic knot raised by 
the new provision: whether such provision is applicable to arbitration proceedings. Adhering to the view 
that considers the applicability of this provision to arbitration proceedings or to the view that denies such 
possibility  is a matter of the exact juridical qualification attributed to the institute at issue, besides the 
proper outlining of the judicial powers pertaining to arbitrators. Both the affirmation of the judicial 
effectiveness of the arbitration order, as provided in Art. 824 bis i.c.p.c., and the examination of the 
enforcement e and injunctive powers of arbitrators had a central importance in the above described 
investigation.  
Therefore, once we prove and recognize (i) that coercive measures pertain to the scope of the protection 
of the sentence – and not to the scope of protection of the execution and injunctive stage, and (ii) that the 
ordinary process and the arbitration process are fully interchangeable, the denial of the power of 
arbitrators to issue astrainte appears an unjustifiable limitation, fathered by a mindset that nowadays can 
hopefully only be a distant memory. Outside of those ones who maintained that such power should be 
expressly given to arbitrators in the arbitration clause, since it is a judicial tool contained in the code, the 
parties, pursuant to art. 816 bis i.c.p.c., can surely assign such power in the arbitration clause, just like 
they can specify that such power cannot be exercised by the arbitrators. In conclusion, the result of our 
analysis is that, in the absence of any express will of the parties, there is no valid reason to prevent the 
arbitrators from issuing the measure provided for in art. 614 bis i.c.p.c., upon request by the moving 
party.    	


L’esecuzione indiretta nel sistema processuale e in arbitrato

Archivio della ricerca- LUISS Libera Università Internazionale degli Studi Sociali Guido Carli di Roma

L&#8217;esecuzione indiretta nel sistema processuale e in arbitrato

L’effettività della tutela esecutiva e l’evoluzione delle misure coercitive nell'ordinamento interno. Strumenti di esecuzione indiretta, l'esperienza straniera e quella nostrana. Profili ricostruttivi dell'art. 614 bis c.p.c. I provvedimenti idonei a contenere la comminatoria dell’astreinte. La misura coercitiva in arbitrato

L’esecuzione indiretta nel sistema processuale e in arbitrato

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LUISSearch

Archivio della ricerca- LUISS Libera Università Internazionale degli Studi Sociali Guido Carli di Roma

Archivio della ricerca- LUISS Libera Università Internazionale degli Studi Sociali Guido Carli di Roma