How to draft an emergency injunction under Art. 700 CPC with AI

The steps

1. 1.

   Determining jurisdiction and filing

   Pursuant to Art. 669-ter c.p.c., the petition must be filed electronically with the court that has jurisdiction over the merits of the future dispute. It is necessary to verify with extreme precision the criteria for jurisdiction based on value, subject matter, and territory, as a successful jurisdictional challenge in the interim phase renders any granted measure ineffective. If jurisdiction belongs to a foreign court, the application is submitted to the judge who would have had territorial jurisdiction over the merits in Italy; in case of arbitration, interim powers belong to the arbitrators if provided for by law or by the parties (Art. 818 c.p.c.). Filing must be preceded by payment of the unified court fee (contributo unificato), calculated on the value of the dispute and reduced by half for interim proceedings.

2. 2.

   Verification of subsidiarity and atypicality

   Art. 700 c.p.c. is residual in nature, requiring counsel to analytically demonstrate that the legal system does not provide any typical interim measure (such as attachments or notices of new work or feared damage) suitable for protecting the right in question. Failure to prove the atypical nature of the request results in the inadmissibility of the petition for breach of the principle of subsidiarity. Within the body of the application, it must be clarified why no other urgent procedural tool can effectively prevent the complained harm. This phase requires a careful examination of the nature of the legal right to be protected and the specific threats affecting it.

3. 3.

   Articulation of Fumus Boni Iuris

   The petitioner must allege and prove the probable merit of the right that will be the subject of the future merits trial, providing a summary but convincing assessment of their legal claim. Absolute certainty is not required, but rather a significant probability of the existence of the right, grounded on documentary evidence or serious and precise indications. The constitutive facts of the claim must be accurately reconstructed, citing the relevant substantive laws and attaching supporting documents. Insufficient evidence regarding the fumus leads to the rejection of the petition, regardless of the gravity of the imminent danger.

4. 4.

   Description of Periculum in Mora

   The periculum in mora consists of the threat of an imminent and irreparable prejudice that could occur during the time required to obtain a judgment on the merits. Irreparability must be understood both objectively (impossibility of restoring the status quo ante) and subjectively (inability of monetary compensation to fully redress the harm). It is essential to specify the nature of the harm, its current relevance, and the severity of its negative effects on the petitioner's legal sphere: a generic or hypothetical description of the danger inevitably leads to the rejection of the interim application.

5. 5.

   Drafting the requested measure

   The petition must contain a precise and specific indication of the interim measure requested from the judge, which must be suitable to restrain the harmful conduct or provisionally secure the effects of the future judgment. Although the judge has discretionary powers of adaptation, a lack of specificity in the application can limit the effectiveness of the protection obtained. Conclusions should be formulated clearly, where appropriate requesting a penalty for delay in performance (astraintes) pursuant to Art. 614-bis c.p.c.. It is fundamental that the requested measure remains instrumental to the right to be asserted in the subsequent merits trial.

6. 6.

   Compliance with Art. 669-bis et seq.

   The procedure is governed by the rules on the uniform interim process under Art. 669-bis et seq. of the c.p.c.. Once the petition is filed, the President of the Court or the designated Judge issues a decree setting the hearing date and the deadline for service to the respondent, unless summoning the counterparty could jeopardize the measure's implementation (ex parte relief). In the event of pre-trial granting, since Art. 700 measures enjoy reduced instrumentality, it is no longer mandatory to start the merits case within a peremptory period on pain of forfeiture, though doing so is often advisable to consolidate protection. The petitioner must carefully monitor the service deadlines set by the judge to avoid immediate invalidity of the procedure.

Legal basis: Art. 700 c.p.c.Art. 669-bis c.p.c.Art. 669-ter c.p.c.