31562 - Judicial Protection and Alternative Procedures

Learning outcomes

The course tends to the knowledge and formation of a person skilled in mastering abilities to think critically and communicational paths, juridically in line with the times. Therefore, in fact, a first part completely dedicated to the study of general theory and principles of jurisdictional protection is provided, because only through these can be mastered the ability to face problems, the solution of which can be obtained using general theory basis even if that is not immediately evident. Second part is maily dedicated to the study of more specific and concrete fields; those, in fact, cannot miss in a modern graduated cv: alternative dispute resolutions, more rapid and effective than traditional one, and therefore very appealing to post-modern markets; attention to companies needs, not only from a macro-dispute point of view but also from those of a single worker; procedure and judicial law in corporate law; european law paths, that cannot be ignored from many year by now.

Course contents

Calendar of lessons divided by topics (corresponding to the examination programme): 1) Constitutional sources. International and European law. Case law and general principles. 2) Function of the trial. Material truth and procedural truth. Implications on models of protection. 3) Costs and time of the proceedings. 4) Procedural acts. The duty of conciseness. The telematic process. 5) The judge: third party status; impartiality, independence; immovability. Careers, disciplinary responsibility and civil liability. 6) Jurisdiction: external and internal limits. The territorial limit and reg. 1215/12. Ordinary jurisdiction and administrative jurisdiction. Regulation of jurisdiction. 7) The right of action. Procedural prerequisites 8) The conditions for an action. Summons and appeal. Preclusions. 9) Actions in administrative proceedings.. 10) The adversarial system. 11) Judgement by default. Uncontested facts. 12) The defendant's defences: the exception, the counterclaim. 13) The judgment: the statement of reasons. Correspondence between requested and pronounced in civil proceedings. 14. Res judicata in the formal sense. Res judicata in the substantive sense. Limits of res judicata in civil proceedings. 15) The fair trial in civil, criminal, administrative and tax proceedings 16) Again on adversaria system on means of proof. The burden of proof. 17. Classification of means of proof. Documentary evidence. The computer document 18) Presumptive evidence. Technical advice. 19) Atypical and unlawful evidence. 20) Arbitration 21) Mediation and conciliation: introduction. The mediator 22) Confidentiality in mediation. Relationship between mediation and trial. 23) Fundamentals in civil enforcement. Compliance and administrative enforcement 24) Interim measures.

Readings/Bibliography

FOR ALL STUDENTS

OPTION 1

1) G. F. Ricci, Principi di diritto processuale generale, VI ed. 2015, Giappichelli, Torino
2) F.P. Luiso, Diritto processuale civile, Volume V: La risoluzione non giurisdizionale delle controversie, X ed. 2019, Giuffré, Milano (chapters 3, 4, 5, 8, 9, 10, 12 only)

OR, AS AN ALTERNATIVE, OPTION 2

1) B. Brunelli, Lezioni di diritto processuale generale, diritto processuale del lavoro, diritto delle procedure concorsuali, Bologna, 2020 (up to 24th lesson included)

Teaching methods

Lessons are granted in presence: no remote lessons are provided. Active participation of attendants would be greately appreciated.

During the lessons, attending students will be offered some insights, case studies and exercises that will allow a reduction of the exam program, corresponding to the topics covered by the in-depth studies and exercises carried out.

Assessment methods

The examination consists of an oral test, aimed at verifying knowledge of the subject, the ability to use correct terminology and the ability to reason about problems.

In particular, the assessment of the test will be carried out taking into account: knowledge of the subject, in all its parts; the ability to make connections between the different parts of the subject; the ability to develop critical arguments; the articulation of the exposition; the accuracy of the exposition; the use of appropriate technical language.

Grading takes into account the following criteria:

Sufficient preparation on all topics, acceptable language with some inaccuracies, ability to analyse that only emerges with the teacher's help: 18/20

Sufficient preparation with some in-depth study, correct language, ability to analyse: 21-24

Extensive preparation, autonomous critical reflections, mastery of specific language: 25-29

Extensive preparation, autonomous capacity for reflections and connections, perfect use of language, excellent presentation of the subject: 30-30L

Teaching tools

Students who, for reasons dependent on disabilities or specific learning disorders (DSA), require compensatory tools may communicate their needs so that they can be referred to the contact persons and agree on the most appropriate arrangements.

Office hours

See the website of Roberto Bonatti