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LITISPENDENZA

Article 39 of the Italian Code of Civil Procedure regulates the concept of litispendenza (this term stems from the latin words litis and pendentia, literally “lawsuit” and “pending” hence “pending lawsuit”), which plays a very important role both in domestic and international proceedings. This simple yet so tricky norm prevents the practical conflict of judgments, namely the uncharacteristic case in which a single dispute has given rise to two contrasting rulings. The provision aims to ensure compliance with the principle of ne bis in idem (only one judgment may be issued on the same issue) or). This institution pursues the aims of the principle of legal certainty which is a staple of the rule of law. The former principle expresses a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. The origins of this legal concept can be traced back to Roman civil law and can be associated to the concept of “double jeopardy” in common law, whereby a person cannot be tried twice for the same facts which represent an offence.

If this principle did not exist, the consequences would be inconvenient if not even grotesque: imagine two different rulings in which a person are recognised as the legitimate owner and the non-owner of the same property!

In Italian procedural legal system the term “litispendenza” indicates that a lawsuit has been filed or, is already pending between the same parties in respect of the same subject manner before another court or even another authority.

Under Article 39 of Italian Code of Civil Procedure the forthcoming lawsuit must be dismissed and removed from the register.

As its origins can be traced back to Roman civil law, unsurprisingly the concept also exists in French Law where it is known as litispendance, in Spanish Law (litispendencia), German Law (Rechtshängigkeit or Litispendenz).

In common law systems, litispendenza can be associated with the concept described by the Latin words “lis alibi pendens”.

 

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