In spite of recent years rise of ADR instruments adoption, the Draft Law no. 755/2018 purpose is rather oriented to innovate an existing Judicial instrument, i.e. Italian order of payment, in the aim of affording creditors with alternative, but more effective proceeding which shall be closer to his needs.

The proposal – which is still under examination at the Italian Senate - provides the lawyer with the power to certify the existence of all requirements provided by law for the issuance of the order of payment and thus, it eliminates the phase that currently takes place inaudita altera parte before a Judge.

In a nutshell, the lawyer, duly authorized by a professional mandate, is entrusted with the power to issue at his client’s request, (who has to be a creditor of a certain amount of money) the order of payment – that further from being limited to the debt, includes also justice expenses and the same lawyer’s fee. As a consequence, the debtor has 20 days to file an opposition or, alternatively, to pay his debt. In case the debtor does not undertake any of the aforementioned initiatives, the creditor is free to satisfy his rights through the existing enforcement proceedings.

However, in order to avoid unnecessary enforcement proceeding, the credit-holder may decide to authorize the lawyer’s consultation of public bodies databases in order to investigate beforehand, with telematic modalities, the assets to seize.

In case the Draft Law is adopted by the Italian Parliament, the creditor will no longer bear the cost of the fees related to the filing of claims and could benefit by halving (at least on paper) the time to obtain an enforceable title. Moreover, it must be noticed that, new lawyers' prerogatives would be counterbalanced by the provision of a disciplinary sanction in case of willful misconduct or gross negligence, in addition to the obligation to reimburse the court costs and damages incurred by the person who was addressed with a wrongfully issued order.

On the one hand, this proposal ought to be looked at in favorable manner in reason of its purpose of easing both the existing procedure and lowering down both the relating costs (which are currently borne by the creditor) and the amount of work demanded to the Italian judicial machine.

On the other hand, some aspects remain quite obscure. In this view, it is not clear what judicial office would have jurisdiction to attest to the enforceability of the decree issued by the lawyer, nor, what criteria shall be used to identify the judge having jurisdiction in matter of opposition.

Furthermore, the Draft Law no. 755/2018 is structured in order to allow the issuance of payment orders in all the cases currently falling within the list of art. 633 of the Italian Civil Procedure Code. More in particular, some issues may arise from the case referred to at no.1 of the first paragraph of the article mentioned above. Indeed, over the years, the particular rule at hand have notoriously been the source of continuous debates among Courts. What parameters should the lawyer in charge adopt in evaluating such requirements not to incur in any oppositions or, even worse, in claims for damages?

The effort to facilitate credit claims, especially in the current framework of the slow pace of Italian civil jurisdiction, is certainly noteworthy. But what about the debtors’ position? The content of the current Law Draft may in fact undermine his rights in many different ways from the burden of expenses - currently divided between the parties - to the risk of establishing judgments before incompetent authorities, due to the lack of clarity of the same Draft Law. Moreover, the choice of the timing may appear to be excessively stringent and, perhaps, detrimental to the constitutionally guaranteed right of defence.

If the appropriate cautions were not provided, the risk is that the spirit of this new proposal could be rendered vain; as a matter of fact, the Simplified order for payment procedure, as it is now structured, could reduce the commencement for the current Order for Payment Procedure, but could, at the same time, increase the commencement of the oppositions to the Order of Payment.

Considering that the opposition to the Order of Payment is a civil ordinary proceeding, that requires a longer timing and the full contradictory between the parties, there is the actual risk that the new proposal could further burden the Italian judicial machine.