Litispendenza e sospensione del procedimento: il giudice italiano di fronte all’art. 31, par. 2, del regolamento Bruxelles I-bis

One of the most significant provisions introduced by regulation (EU) No. 1215/2012 is the one concerning cases of intra-EU lis pendens where one of the courts before which the proceedings are pending has in principle jurisdiction according to a choice of forum clause. In this scenario, the traditional rule on lis pendens, contained in Article 29 of the regulation, according to which “any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established”, is not applicable anymore. Rather, pursuant to Article 31, par. 2, of the regulation, “any court [different from the one mentioned in the choice of forum clause] shall stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement”. The present study looks at how the new provision has so far been applied by Italian courts, focusing in particular on the analysis that the court first seized and different from the one chosen in the choice of forum clause shall or can make before deciding whether to suspend the proceeding. With specific reference to the Italian rules of civil procedure, it is submitted that the discretion that, to some extent, should be granted to the court first seized in deciding whether to suspend or not the proceeding cannot be so extensive to justify a request by said court to the parties to file the three briefs pursuant to Article 183, par. 6, of the Italian code of civil procedure. Should such a request nevertheless be made, remedies offered by the Italian and by the EU legislation are not satisfactory at all. As to the Italian legal order, the party claiming that the proceeding should have been suspended has no access to the “regolamento di competenza” in front of the Corte di Cassazione: this remedy is available only in the reverse situation, i.e. to a party claiming that the proceeding has been unlawfully suspended. As to the EU legal order, the fact that a decision has been rendered by the court that should instead have suspended the proceeding pursuant to Article 31, par. 2, of the regulation, is not a valid ground for non-recognition of said decision in the other member states. In the light of the above, the present study concludes that, despite the significant innovation brought forward by Article 31 of the regulation, something more can still be done, both at an EU and at an internal level, to enhance the degree of protection of the interests of international trade.