Challenging and Enforcing Arbitration Awards

Last verified on Friday 4th February 2022

Challenging and Enforcing Arbitration Awards: Italy

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Applicable requirements as to the form of arbitral awards

1. Must an award take any particular form?

Italy

Under article 823 of the Italian Code of Civil Procedure (CCP), an award must be in writing. The deliberation of the award must take place with the participation of all arbitrators, and in their presence, if so requested by one of the arbitrators. However, the award does not need to be unanimous and a majority vote suffices. The award must contain the names of the arbitrators and of the parties, indicate where the seat of arbitration is and quote the arbitration agreement and the parties’ requests for relief. The award must also include a (brief) reasoning and the operative part of the award. Finally, the arbitrators must sign the award: the signatures of the majority suffice, provided that the award states that (i) all arbitrators have participated in the deliberation and (ii) the other arbitrators were unable, or refused, to sign the award. Article 823 of the CCP no longer requires the award to state the place where it was rendered, whose article 816(3) of the CCP allows it to be different from the seat of the arbitration.

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Applicable procedural law for recourse against an award (other than applications for setting aside)

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Italy

Under article 826 of the CCP, at the request of one of the parties, an arbitral tribunal may correct an award, provided that the request is filed within one year of its notification to the parties. This remedy applies only to clerical and computational errors and omissions (eg, if the award does not state the arbitrators’ or parties’ names, or the seat of arbitration). If the arbitrators neglect to correct the award, a party has already requested the exequatur of the award or the one-year time limit has elapsed, the interested party may file a motion before the court of the seat of arbitration. If the award has been challenged, parties may also entrust the competent court of appeal with the correction of the award.

Article 831 of the CCP provides for the remedy of revocation of the award, which is available for fraud or other specific grounds as set out in article 395(1) Nos. 1, 2, 3 and 6 of the CCP.

Revocation is an exceptional means of challenge of court judgments, which may be invoked after the elapse of the term for the ordinary appeal when the decision is affected by material injustice because of the existence of specific circumstances, as identified in the exhaustive list provided in article 395 of the CCP. Article 831 of the CCP extends the availability of the remedy of revocation to arbitral awards. Therefore, revocation of an award (and consequent renewal of proceedings) may be obtained whenever the award results from an act of fraud committed by the winning party, or is based on false evidence, or the losing party acquires new conclusive evidence that had not been able to obtain before the award was rendered owing to force majeure or the other party’s conduct, or a final court judgment has found that an arbitrator acted fraudulently. Revocation may be requested within 30 days of the losing party becoming aware of the relevant grounds for revocation.

Furthermore, under article 831 of the CCP, an award may at any time be subject to third-party opposition. This remedy consists of a recourse for annulment of the award by third parties who did not participate in the arbitral proceedings. One specific case of third-party opposition codified in article 831 of the CCP applies to creditors or assignees of one party to the arbitral proceedings, who can file a recourse for annulment if the award is the result of fraud or collusion to their detriment within 30 days of the discovery of the fraud or collusion.

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3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Italy

According to article 827(1) of the CCP, an award is subject to the following means of challenge: annulment, revocation and third-party opposition.

Annulment is governed by articles 828 to 830 of the CCP. It is a remedy specifically addressed to arbitral awards (unlike revocation and third-party opposition, which concern court judgments and arbitral awards alike).

Pursuant to articles 828 and 829 of the CCP, at the losing party’s request, an award may be set aside by the Court of appeals of the seat of arbitration. The right to request the setting aside cannot be waived or relinquished ex ante by the parties. Italian law is consistent with most advanced arbitration legislation in providing limited grounds for a challenge. As a rule, awards may not be challenged on the merits. They may be challenged for errors in law only if this possibility was expressly agreed by the parties or is admitted by law (this happens, for example, if the subject matter of the arbitration is the validity of resolutions of a shareholders’ meeting of companies incorporated under Italian law or a labour dispute, or if the arbitral tribunal has decided on a preliminary issue that lacks subject-matter arbitrability). Furthermore, a challenge is always possible in the event of an award conflicting with Italian public policy.

Article 829 of the CCP lists 12 grounds for challenging an award, which consist of procedural violations, namely:

  • invalidities affecting the arbitration agreement;
  • invalidities affecting the appointment of arbitrators;
  • incapacity of the arbitrators;
  • the award containing a decision that is ultra petita partium;
  • failure of the award to fulfil the mandatory formal requirements;
  • failure of the arbitral tribunal to decide within the time limit for rendering the award;
  • failure to comply with mandatory procedural formalities;
  • conflict with a previous award or a court decision that has acquired res judicata authority;
  • failure to comply with the principles of fair trial and contradictoire;
  • failure to decide on the merits when a decision on the merits was due;
  • contradictions affecting the dispositive part of the award; and
  • failure to decide on any of the parties’ claims or defences in conformity with the arbitration agreement.

Article 829(3) of the CCP also provides that an award may be annulled owing to a violation of the rules of law applicable to the merits of the dispute, only if this ground  challenge was ‘expressly’ agreed by the parties or contemplated by the law, as it happens in the circumstances contemplated by paragraphs (4) and (5) of article 829.

Article 829(3) of the CCP further provides that an award can be annulled for breach of public policy.

These grounds largely mirror those under which an award may be denied recognition or enforcement.

Revocation is an exceptional means of challenge of court judgments, which may be invoked after the lapse of the term for appeal when the judgment is affected by material injustice due to the existence of specific circumstances identified in an exhaustive list set out in article 395 of the CCP. Article 831 of the CCP extends the availability of this remedy to arbitral awards. Therefore, revocation of an award (and consequent renewal of proceedings) may result from a challenge grounded on the award being based on an act of fraud by the winning party  or false evidence, or on the losing party’s acquisition of new conclusive evidence, provided that the party had not been able to obtain the evidence before the award due to force majeure or the other party’s conduct. Lastly, the revocation of the award may be obtained in the event of an act of fraud by the arbitrator ascertained by a final court judgment.

Under article 831 of the CCP, an award may be subject to third-party opposition. This remedy consists of a recourse for annulment by third parties who did not participate in the arbitral proceedings against an award that is detrimental to their rights. One specific case of third-party opposition codified in article 831 of the CCP applies to creditors or assignees of one party to the arbitral proceedings, who can file a recourse for annulment if the award is the result of fraud or collusion to their detriment.

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Applicable procedural law for setting aside of arbitral awards

4. Is there a time limit for applying for the setting aside of an arbitral award?

Italy

Article 828 of the CCP sets out two different time limits for filing annulment applications.

A party wishing to expedite the consolidation of the effects of an award may serve the award on the other party, in which case the challenge must be filed within 90 days of the date of service (the ‘short’ time limit pursuant to article 828(1)) of the CCP).

If the award is not served, parties are barred from bringing a challenge after one year has elapsed from the date of the last arbitrator’s signature of the award (the ‘long’ time limit pursuant to article 828(2) of the CCP). According to article 1(15) of the enabling act on the reform of civil procedure approved by the Parliament in November 2021 (Law 26 November 2021, No. 206), the government has been instructed to reduce to six months the ‘long’ time limit to mirror that for the appeal of court judgments.

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5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Italy

Courts can set aside awards, partial awards and interim awards. Article 827(2) sets out different timings for challenging partial and interim awards. Awards that partially decide the merits of the dispute (ie, partial awards) may be challenged immediately, whereas awards that resolve only some of the issues that have arisen during the proceedings without settling the dispute, not even in part (ie, interim awards), can be challenged only with the final award. In light of this provision, a party intending to challenge an interim award does not need to make any specific reservation to preserve its right to challenge the award.

Concerning partial awards, in the absence of a specific provision in point, it is debatable whether their immediate challenge is necessary, or a reservation of a postponed challenge pending the issuance of the final award is also possible. The prevailing case law supports the former solution.

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6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Italy

The court with jurisdiction to hear the setting-aside proceedings of domestic arbitral awards is the court of appeals of the district in which the seat of the arbitration is located. The competent court of appeals acts through a panel of three judges.

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7. What documentation is required when applying for the setting aside of an arbitral award?

Italy

As Italian arbitration law regulates only certain procedural aspects of the setting aside of arbitral awards, the relevant gaps have to be filled by reference to the rules that apply, in general, to proceedings before the courts of appeals under articles 339 to 359 of the CCP.

In particular, setting-aside applications are filed by means of a writ of summons, drafted and signed by a lawyer admitted to practise in Italy and duly endowed with power of attorney. The writ of summons must state in a complete and detailed fashion the grounds invoked for the annulment of the award, the applicant not being entitled to add further grounds at a subsequent stage of the proceedings and the court of appeals’ scrutiny being, in principle, confined to the grounds stated in the writ of summons. It must also summon the respondents on which it is served to appear at the first hearing on the date indicated therein (pursuant to article 163-bis of the CCP, a minimum of 90 days, or 150 days if the respondent resides abroad, must elapse between the date of service of the writ of summons and the date of the first hearing).

Within 10 days of completion of the notification process, the writ of summons and the accompanying documents must be deposited with the competent court of appeals’ chancery.

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8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Italy

If an award or arbitration agreement is drafted in a language other than Italian, the applicant must also file a certified translation of the document by a certified translator (CCP, article 839(3)).

A party intending to tender documentary evidence in a language other than Italian must provide a translation or request the court of appeals to appoint a translator pursuant to article 123 of the CCP.

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9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Italy

The applicant must pay the standard court fees and administrative stamps. Moreover, both the award and the arbitration agreement (whether submitted in original or certified copies) must bear a fixed-price stamp duty.

The parties are also jointly and severally liable for payment of the registration fee for the judgment rendered as a result of the setting-aside proceedings, without prejudice for the subsequent recourse of the winning party against the losing party in the event that the arbitral award allocated the burden of the costs relating to the arbitral proceedings.

Pursuant to article 122 of the CCP, the set-aside application must be in Italian. There are no limitations as to the length of the submissions or of the documentation to be filed by the parties. Nevertheless, Italian courts may at times encourage the parties to abide by certain broad drafting guidelines, which tend to include (non-binding) page limits.

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10. What are the different steps of the proceedings?

Italy

The parties articulate their defences through written pleadings. Setting-aside applications are filed by means of a writ of summons, which is followed by the other party’s, or parties’, statement of defence.

Following this first exchange of submissions, at the first hearing, after verifying that all the parties have appeared or have been duly summoned, the court of appeal schedules a further hearing at which the parties must declare whether they confirm their requests for relief (precisazione delle conclusioni). The court of appeal then sets the time limits for the parties’ final submissions: each party can file a post-hearing brief, followed, within 20 days, by a rebuttal. The court may also schedule another hearing for discussion, should any party so request.

Pursuant to article 1(8) of Law 26 November 2021, No. 206 on the reform of civil procedure, whereby the Parliament entrusted the government with the revision of the proceedings before the court of appeal in accordance with specific predetermined guidelines, the above procedure is likely to be amended.

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11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Italy

Setting-aside proceedings do not entail the automatic suspension of an award. Accordingly, under Italian law, an award may be enforced pending a challenge.

However, article 830(4) of the CCP provides that in the context of annulment proceedings, the challenging party may ask the competent court of appeals to suspend the effects of the award when there are ‘serious reasons’ justifying such a measure. The ‘seriousness’ of the reasons must be assessed similarly to the standard of article 283 of the CCP on the suspension of the enforceability of appealed first-instance court judgments. The relevant motion may accompany the annulment application or can be filed thereafter; however, in practice, not unlike with first-instance judgments, most courts of appeals hold a special hearing for discussion of the request of suspension only as a result of a specific separate filing requesting a hearing.

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12. What are the grounds on which an arbitral award may be set aside?

Italy

Article 829(1) of the CCP lists 12 distinct procedural grounds for annulment. Although this may give the impression that the Italian lex arbitri provides a wider array of grounds than other jurisdictions, this conclusion would be wrong. The list of grounds for annulment simply consists of detailed (and more predictable) grounds of challenges that in other jurisdiction are framed in broader terms.

The 12 grounds for challenging an award under article 829(1) of the CCP consist of procedural violations, namely:

  • invalidities affecting the arbitration agreement;
  • invalidities affecting the appointment of arbitrators;
  • incapacity of the arbitrators;
  • decisions rendered ultra petita;
  • failure of an award to fulfil the mandatory formal requirements;
  • failure to decide within the time limit for rendering the award;
  • failure to comply with mandatory procedural formalities;
  • conflict with a previous award or court decision that has acquired res judicata authority;
  • failure to comply with the principle of fair trial and audi alteram partem;
  • failure to decide on the merits when a decision on the merits was due;
  • contradictions affecting the dispositive part of the award; and
  • failure to decide on any of the parties’ claims or defences in conformity with the arbitration agreement.

None of the above grounds for annulment may be waived in advance by the parties.

Article 829(3) of the CCP also provides that an award may be annulled owing to a violation of the rules of law applicable to the merits of the dispute, only if this ground of challenge has been ‘expressly’ agreed by the parties or is contemplated by the law, as happens in the circumstances contemplated by paragraphs (4) and (5) of article 829.

Article 829(3) of the CCP further provides that an award can be annulled for breach of public policy.

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13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Italy

According to article 830(1) of the CCP, when a challenge is upheld, the court of appeals issues a judgment by which it declares the nullity of the award. If the relevant defect affects a part of the award and that part may be severed from the rest of the reasoning, the court declares a partial annulment of the award. Article 830(2) of the CCP differentiates situations in which the court of appeals can only annul the challenged award (known as pronuncia rescindente) from situations in which, after annulment of the award, the court is also required to adjudicate on the merits of the dispute originally submitted to arbitration (pronuncia rescissoria). In particular, if on the date when the arbitration agreement was signed one of the parties resided or had its place of business abroad, the court of appeals would be entitled to decide the dispute on the merits only if the parties had so stipulated in the arbitration agreement or mutually requested it to do so.

The judgment rendered by the court of appeals in the annulment proceedings may be challenged before the Supreme Court by means of an appeal and before the same court of appeals that rendered the judgment by means of revocation and third-party opposition. By means of these remedies, the applicant may challenge defects affecting the judgment of the court of appeal, thus dealing only indirectly with the defects of the award that were the subject matter of the original annulment application.

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14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Italy

Article 840(3) No. 5 of the CCP restates article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention) and identifies three different situations that may affect a foreign award as grounds for refusing its recognition, including the award having been set aside by a competent authority of the state of the lex arbitri. In this regard, however, it is undisputed that for the purposes of article 840(3) No. 5, the binding character of the award should not be excluded for the reasons that the award has not yet become enforceable under the lex arbitri or is still subject to exequatur or challenge through annulment or other extraordinary means before the courts of the state of the seat.

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Applicable procedural law for recognition and enforcement of arbitral awards

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Italy

Article 824-bis of the CCP provides that, as of the date of the last signature, a domestic award has the same effects as a court judgment. Under article 825 of the CCP, the winning party who intends to enforce the award must file a request with the court at the seat of arbitration for granting exequatur. In the context of the exequatur proceedings, the court merely reviews the formal validity of the award.

The request for exequatur of a foreign arbitral award must be filed with the court of appeals of the place of domicile of the party against whom the enforcement of the award is sought. If the party against whom the enforcement is sought is not domiciled in Italy, the request must be filed with the court of appeals in Rome. The president of the court of appeals reviews merely the formal validity of the award and declares the award enforceable in Italy, unless the dispute would not have been arbitrable according to Italian law, or the award contains dispositions that are contrary to Italian public policy.

Italy is a contracting state to several treaties that aim to facilitate the recognition and enforcement of awards, including the New York Convention), the 1961 European Convention on International Commercial Arbitration (the Geneva Convention), the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and several bilateral conventions.

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16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Italy

Italy ratified the New York Convention on 19 January 1968. No reservations were made and the Convention entered into force in Italy on 1 May 1969. Since the Convention was implemented by way of an instrument (ie, an execution order) whereby an international treaty is directly incorporated in the Italian legal system, the rules set out by the Convention apply directly in lieu of the provisions laid down by articles 839 and 840 of the CCP, which remain applicable only for matters not regulated by the Convention, or when providing for a regulation that is ‘more favourable’ to the recognition and enforcement of a foreign award within the meaning of article VII of the Convention.

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Recognition proceedings

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Italy

Proceedings for the recognition and enforcement of an arbitral award are required only as regards foreign arbitral awards. Domestic awards are enforceable on the basis of a mere exequatur decree issued by the court of first instance of the forum of the arbitral seat upon request of either one of the parties.

Neither the recognition and enforcement of foreign awards nor the enforcement of domestic awards is subject to a specific statute of limitations. Therefore, according to the largely prevailing view, the relevant cause of action is subject to the 10-year ‘ordinary’ statute of limitations that, under article 2946 of the Italian Civil Code (CC), applies as a default to any causes of action, unless a specific provision provides otherwise.

Pursuant to article 2935 of the CC, this statute of limitations runs from the date on which the claims grounded on the award can be brought in court proceedings (ie, from the date when the award becomes binding in accordance with the relevant provisions of the lex arbitri).

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18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Italy

In this regard, a distinction must be made between domestic and foreign awards (the latter being awards rendered in arbitrations seated in a foreign jurisdiction).

Article 824-bis of the CCP provides that, as of the date of the last signature, the award rendered in proceedings seated in Italy has the same effect as a court judgment. The winning party who intends to enforce a domestic award must file a request with the court at the seat of arbitration for granting the exequatur (article 825 of the CCP). In the context of the exequatur proceedings, the court merely reviews the formal validity of the award.

There is no ad hoc court or chamber vested with jurisdiction over applications for recognition and enforcement of a foreign arbitral award. These requests must be filed with the court of appeal at the place of domicile of the party against whom the enforcement of the award is sought, which shall follow the rules set out in article 839 of the CCP. If the defendant is not domiciled in Italy, the request must be filed with the court of appeal in Rome. The president of the competent court of appeal simply reviews the formal validity of the award and declares it enforceable in Italy, unless the dispute is not arbitrable according to Italian law or the award contains dispositions contrary to public policy.

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19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Italy

Jurisdiction for recognition and enforcement is not based on the location of the award debtor’s assets.

In the case of domestic awards, the jurisdiction of the court for the exequatur proceedings is established on the basis of the place at the seat of arbitration, whereas for foreign awards, the court of appeals’ jurisdiction for recognition and enforcement is based on the defendant’s place of domicile, with the court of appeals in Rome having jurisdiction if a defendant is not domiciled in Italy.

However, once an award has obtained exequatur, the enforcement proceedings on the debtor’s assets are governed by a different set of rules, which deal with enforcement proceedings in general. In this context, the jurisdiction of the court to oversee enforcement and to decide on oppositions thereto, if any, is based, with limited exceptions, on the location of the assets.

With regard to admissibility, as with all proceedings filed before Italian courts, motions to recognise or enforce an award require standing and the applicant’s interest to act. There is no specific statute of limitations applicable to the recognition and enforcement of foreign awards. Therefore, recognition and enforcement of an award are subject to the 10-year ordinary statute of limitations, which applies to the enforcement of all rights (CC, article 2946).

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20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Italy

As regards the nature of recognition proceedings, irrespective of whether the award is domestic or foreign, an initial ex parte phase is provided for, which may be followed by a subsequent adversarial phase. However, the court in charge and the proceedings differ depending on whether the award is domestic or foreign.

Domestic awards are granted exequatur by the competent court of first instance (Tribunale) following a mere review of formal compliance with the mandatory requirements provided by law. The court of first instance gives notice to the parties of the grant (or denial) of exequatur. The court’s decree granting or denying exequatur is subject to a complaint before the court of appeal, which decides in camera after hearing the parties. Recent case law has clarified that exequatur proceedings must be kept distinct from proceedings for the setting aside of the award, in that the grant (or denial) of exequatur does not per se constitute a decision separate from the arbitral award. As a result, the court of appeal’s decision on exequatur cannot be appealed to the Supreme Court.

Different formalities are provided for recognition proceedings relating to foreign awards. The request for exequatur is filed with the president of the court of appeal for the district where the party against whom recognition and enforcement is sought resides, or, if that party is not domiciled in Italy, with the president of the court of appeal of Rome. The party seeking recognition and enforcement must file an application with a brief description of the relevant award and the information needed to check whether the conditions required for granting exequatur are met. The review by the president of the court of appeal implies a scrutiny not only of the formal validity of the foreign award, but also of the subject-matter arbitrability of the dispute decided by the arbitral award under Italian law and of the compliance of the award with Italian public policy.

At the conclusion of the ex parte phase, the President of the court of appeal decides on the application for exequatur of the foreign award by  decree, which either declares the award enforceable in Italy or rejects the application when the relevant requirements are not met, whether on procedural grounds or for reasons concerning the merits. The President’s decree is communicated by the court of appeal’s chancery to the applicant. According to article 840(1) of the CCP, it can be challenged by means of an opposition to be filed within 30 days of the date of service by the applicant to the other party or parties, when exequatur is granted and of the date of the chancery’s communication when exequatur is denied.

The subsequent adversarial phase takes place before a panel, in accordance with the procedure provided for by article 645 of the CCP (concerning the procedural rules applicable to oppositions to payment or delivery orders rendered ex parte).

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21. What documentation is required to obtain recognition?

Italy

The enforcement of a domestic award requires a request to be filed with the competent court of first instance at the seat of arbitration, accompanied by the original, or a certified copy, of the award and the original, or a certified copy, of the arbitration agreement. The request for recognition and enforcement must be signed by a lawyer duly admitted to the bar and endowed with special power of attorney.

The same formalities apply, mutatis mutandis, to the recognition and enforcement of foreign arbitral awards before the competent court of appeals.

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22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Italy

Pursuant to article 839(2) of the CCP, if rendered in a language other than Italian, both awards and arbitration agreements must be submitted with a certified translation into Italian.

As regards other documents that may be requested and submitted during the opposition phase, these must also be submitted with an Italian translation in accordance with article 122 of the CCP. However, if the other party does not raise any objection to the submission of documents without an Italian translation, the court may exempt the party from submitting a translation. Likewise, as a rule, translations must be duly certified, but if no objection is raised, a courtesy translation may suffice.

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23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Italy

The petitioner must pay fees consisting of the standard court fees and administrative stamps. Moreover, both the award and the arbitration agreement (whether the originals or certified copies are submitted) must bear a fixed-price stamp duty; the same requirement applies to certified translations. A registration tax is also payable for enforcement, which is currently levied at an amount equal to three per cent (3 per cent) of any sum of money that a party is required to pay in the award or to one per cent (1 per cent) of any right having a patrimonial value on the existence of which the award was adjudicated. The arbitrators have no direct or vicarious obligation for the payment of taxes. If the award is annulled after the registration tax was paid, the party who made the relevant payment is entitled to be reimbursed by the tax authorities, provided that the relevant application is filed within three years of the date on which the payment was made or the award was annulled, whichever is the later. The petitioner must file the required documents with the chancery of the competent court.

While there is no mandatory page limit, in the wake of the Supreme Court Italian courts have issued various specific guidelines recommending that party submissions – which must be drafted in Italian – be concise.

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24. Do courts recognise and enforce partial or interim awards?

Italy

Awards that settle a dispute may be recognised and enforced regardless of whether they are partial (ie, those that rule on some of the disputed issues through a final determination that does not exhaust the subject matter of the dispute) or final. Likewise, awards that decide on preliminary procedural issues, such as the jurisdiction of the arbitral tribunal, can be characterised as awards for the purposes of the New York Convention and can be recognised independently of recognition of the final award. However, interim awards (ie, those that solve some of the issues that have arisen during the proceedings without settling the dispute, even in part) may not be enforced under Italian law.

As regards enforcement, one should distinguish between declaratory and constitutive awards, and condemnatory awards. Although all types of (domestic) awards produce the same effects as a court judgment, irrespective of the granting of exequatur by the court of first instance, only awards whose operative part is condemnatory may be enforced or entered in public registries, or provide a legal basis for the filing of a court-ordered mortgage on the award debtor’s immovable property, pursuant to article 825 of the CCP. The same conclusion applies to foreign awards, as only condemnatory awards may be subject to enforcement, whereas declaratory or constitutive awards may be recognised but are not subject to enforcement.

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25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Italy

The grounds under which an award may be refused recognition correspond to those set forth by the New York Convention.

First, the court of appeals shall refuse recognition either when it finds ex officio that the dispute was not arbitrable under Italian law or when the award contains provisions contrary to public policy. In this context, public policy must be construed as a reference to international (rather than purely domestic) public policy (ie, it refers to the core of fundamental values that are enshrined in the Italian Constitution and bar the recognition of conflicting foreign judgments).

The court of appeals shall also deny recognition if, in the adversarial opposition filed by the party against whom the award is invoked, that party proves the existence of one of the following circumstances:

  • the parties to the arbitration agreement were, under the law applicable to them, under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the state where the award was made;
  • the party against whom the award is invoked was not informed of the appointment of the arbitrators or of the arbitration proceedings, or was otherwise unable to present its case during the proceedings;
  • the award decided on a dispute not contemplated in the submission to arbitration or in the arbitration clause, or exceeded the limits of the submission, provided that, if the decisions in the award that concern questions submitted to arbitration can be separated from those concerning questions not so submitted, the former can be recognised and enforced;
  • the composition of the arbitration tribunal or the arbitration proceedings were not in accordance with the agreement of the parties or, failing such an agreement, with the law of the place where the arbitration took place; or
  • the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the state in which, or under the law of which, it was made, provided that (i) the fact that the award may still be subject to a challenge before foreign courts, or the lack of exequatur by the court of the state of the seat, do not prevent the recognition and enforcement of the award in Italy, and (ii) in relation to the states that are also parties to the Geneva Convention, pursuant to article IX(2) thereof, this provision shall apply only when the award has been set aside under any of the grounds listed in article IX(1).

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26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Italy

Under Italian law, it used to be a matter of debate whether the enforcement of a foreign award could be initiated immediately upon delivery of the decision of the president of the court of appeal that issues the exequatur, or whether the enforcement would be possible only (i) on expiry of the 30-day deadline for filing an opposition against the decision or, if there is opposition, (ii) following the decision of the court of appeal confirming the exequatur.

It has also been suggested that a foreign award may become enforceable pending the adversarial opposition phase, should the court of appeal uphold an application by the award creditor under article 648 of the CCP.

Article 1(15)(b) of Law 26 November 2021, No. 206 (enabling the reform of civil procedure) has resolved the issue, delegating the government to explicitly provide for the enforceability of the decree by which the President of the court of appeal declares the effectiveness of the foreign award.

This being said, it bears noting that, should the award be deemed immediately enforceable, filing an opposition would not have a suspensive effect per se (which would have to be requested by the applicant).

The decision on enforceability of a foreign award can be challenged before the Supreme Court, although it may only exercise a limited review of the lower court’s decision.

Likewise, recourse against a decision by the court of first instance granting exequatur to a domestic award is not subject to de novo review by the court of appeal, which can only be called on to exercise a very limited review of the lower court’s decision.

Awards that have been granted recognition constitute an enforceable order. However, enforcement itself may be initiated only after the recognised award and a writ of enforcement are served on the award debtor. The award and the writ of enforcement must be served directly on the award debtor and not on the debtor’s counsel.

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27. What challenges are available against a decision refusing recognition in your jurisdiction?

Italy

The remedies available to challenge refusals to recognise or enforce an award are the same as those available against decisions that recognise an award and grant exequatur.

In particular, a decision refusing recognition of a foreign award can be challenged before the Supreme Court, although it may only exercise a limited review of the lower court’s decision.

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28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Italy

Under article 840(4) of the CCP, the court of appeals may (but is not bound to) stay the proceedings pending the outcome of a challenge brought before the competent court of the state of the arbitral seat. The trend is for the court seized with the request for recognition to assess whether the challenge against the award is well founded or merely instrumental.

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29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Italy

When staying the proceedings on the recognition and enforcement of an arbitral award, if so requested by the applicant, the court of appeal may order the defendant to post security. In exercising the discretion assigned to them, courts have often emphasised the reference contained in article 840(2) of the CCP to the rules applicable in the event of opposition to an ex parte payment order, and have applied the criteria developed in that context, which require an assessment based on all circumstances of the case.

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30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Italy

As a general rule, awards set aside by the courts at the seat cannot be enforced in Italy pursuant to articles V(1) lit. e) of the New York Convention and 840(3), No. 5 of the CCP.

Despite the lack of any precedent in point, it has been argued that enforcement could be granted to an award set aside at the seat of the arbitration in the event that the foreign judgment setting aside the award were itself unenforceable in Italy under any of the grounds laid down by Italian private international law (article 64 of Law No. 218 of 31 May 1995).

Italian case law has not settled what happens to decisions recognising a foreign award in the event that the award is later set aside at the seat. The prevailing view among commentators is that the judgment granting exequatur is not affected per se and it preserves its res judicata authority. However, the annulment of the award could be raised as a defence at the enforcement stage under article 615 of the CCP.

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Service

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Italy

Service of judicial and extrajudicial documents is governed, in general terms, by articles 137 to 151 of the CCP, although other statutory provisions may be relevant in practice. The default procedure (set forth in article 137 of the CCP) requires the participation of a judicial officer, who delivers the judicial or extrajudicial documents to the addressee at the request of a party, a prosecutor or a court clerk.

As a rule, addressees must be served in person. If the addressees cannot be found at their residence, domicile or place of business, the documents can be served to a family or household member, to an employee or to the building’s attendant. As an alternative, documents can be served by mail. Moreover, service by mail is the required procedure when service is to be made outside the judicial officer’s territorial district.

If the addressee cannot be found either in the municipality where he or she currently resides, or has his or her centre of interests, as a last resort, service can be made at the town hall of the municipality of the last known residence of the addressee.

Service of documents on legal entities and companies follows a similar set of rules, outlined in article 145 of the CCP.

In exceptional circumstances, if the ordinary means of service cannot be adopted, at the request of the interested party, the judge can authorise service by special means chosen by the judge (eg, email, announcements published in specialist press and the like).

A relevant innovation was introduced by Law No. 53/1994 (as modified by Law No. 183/2011, Law No. 221/2012 and Law No. 132/2015). The new legislative provisions provide for the possibility of service being carried out by lawyers via mail, telefax or (as from 2011) certified email.

In principle, judicial and extrajudicial documents served in Italy must be translated into Italian if the original is in another language. In this regard, the regime differs between parties from within EU member states (where article 8 of Regulation (EC) No. 1393/2007 is applicable) and parties from outside the European Union. In the latter case, multilateral or bilateral conventions may apply.

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32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Italy

The two main sources of law governing service out of Italy are the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the Hague Service Convention) and Regulation (EC) No. 1393/2007 on the service in the EU Member States of judicial and extrajudicial documents in civil or commercial matters.

The Hague Service Convention entered into force in Italy as of 24 January 1982 without any reservation. Therefore, as far as Italy is concerned, service can be carried out in accordance with either of the alternative procedures provided for by the Convention, including service via the central authorities designated by each contracting state, via postal services, diplomatic agents and judicial officers.

Regulation (EC) No. 1393/2007 allows for service via diplomatic channels, specifically authorised agencies, the postal service and via direct service on the defendant.

In the absence of any (multilateral or bilateral) convention, under article 142 of the CCP, service out of the Italian jurisdiction can be carried out by transmission of one copy of the relevant documents by registered mail and transmission of another copy through the Ministry of Foreign Affairs, at the request of the attorney general.

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Identification of assets

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Italy

As a general rule, the identification of a debtor’s assets is carried out by a judicial officer, who can directly search the debtor’s premises for attachable assets. In practice, the relevant information is passed to the judicial officer by the creditor and, in particular, it is for the creditor to identify and request seizure of debtor’s receivables or assets that are in third parties’ possession. In conducting a search for assets, judicial officers (and creditors) may have access to several public databases, including, among others: the Real Estate Registry, the Public Automobile Registry, the Companies’ Registry and the tax and social security registers.

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34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Italy

Since 2014, pursuant to article 492-bis of the CCP, judicial officers in charge of enforcement proceedings, subject to authorisation by the president of the court of first instance, may access all databases run by state administrations, and tax and social security registers. As an incentive, the judicial officer will be rewarded with a bonus based on the value of the identified (and then foreclosed) assets.

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Enforcement proceedings

35. What kinds of assets can be attached within your jurisdiction?

Italy

The assets that can be attached under Italian law include movable and immovable goods, as well as receivables, and intangible property such as securities, corporate shares, intellectual property rights, and the like.

Article 545 of the CPC prohibits or limits (to a fixed percentage) the attachment of certain assets and receivables (including salaries and maintenance credits such as alimony).

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36. Are interim measures against assets available in your jurisdiction?

Italy

Although interim measures are generally available under Italian law, to date article 818 of the CCP prevents arbitral tribunals from issuing them. Therefore, award creditors seeking an interim measure can file a request only with the competent court (the only exception to this rule being that, in corporate arbitration, arbitral tribunals can suspend the effects of a resolution of the shareholders’ meeting).

This is poised to change by virtue of article 1(15)(c) of Law 26 November 2021, No. 206 (the enabling act on the reform of civil procedure) instructing the government to amend article 818 of the CCP by the end of 2022. The proposal for a reformed article 818 of the CCP grants arbitrators the power to issue interim measures whenever the parties have so agreed either in the arbitration agreement or in a subsequent written covenant, and unless otherwise provided by law. Under these circumstances, the jurisdiction of State courts to issue interim measures will be limited to requests filed prior to the arbitrators’ acceptance.

Moreover, through the enabling act the government was directed to (i) devise means for the challenge of arbitral interim orders before state courts based on the same grounds contemplated by article 829 of the CCP on the setting aside of awards and to (ii) regulate the means of enforcement of interim measures under the supervision of state courts.

Until the implementation of this significant review, interim measures prior to or pending enforcement of an arbitral award are issued by the court competent for the enforcement (the court of appeal in the case of foreign awards), following a fast-track adversarial phase or, under special circumstances, ex parte. In the latter case, the addressee of the interim measure is heard by the judge after the issuance of the measure, with a view to confirming, amending, or revoking the interim measure.

Under article 669-bis et seq of the CCP, the issuance of interim measures is subject to the requirement that the applicant proves the existence of both a serious risk of irreparable harm pending the decision on the merits and a prima facie case for the main claim.

When issuing an interim measure, courts may require that the applicant posts security.

Under article 669-terdecies of the CCP, interim measures (or decisions refusing to grant them) may be appealed through a fast-track procedure before a panel of judges of the same court as the judge who decided on the original application.

The measures that may be granted are either protective or anticipatory. The main types of interim measures are judiciary seizures, evidence seizures, seizures for security and urgency measures.

Judiciary seizures may be granted to ease direct enforcement whenever ownership or possession of an asset is disputed. Evidence seizures are a subtype of judiciary seizures and have the aim of preserving books, registers and other documents or goods that may be a source of evidence.

Seizures for security under article 671 of the CCP may be authorised if collateral is insufficient; the seizure is performed in the form of (and can be converted into) an attachment.

The rarely sought measure known as liberating seizure can be granted when, pending a dispute about certain facets of an obligation, the debtor offers some assets as collateral in order to be released from his or her obligation.

Finally, article 700 of the CCP provides for an atypical and residual anticipatory measure with the aim of protecting a petitioner’s rights from possible irreparable harm.

All the aforementioned measures may apply to immovable, movable and intangible property.

Interim measures against assets owned by foreign states follow the general principles, but the practical enforcement of an interim measure may be limited on grounds of immunity.

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37. What is the procedure to apply interim measures against assets in your jurisdiction?

Italy

A creditor seeking to obtain an interim measure must file a request with the competent court. The issuance of interim measures is subject to the requirement that the applicant must prove the existence of both a serious risk of irreparable harm pending the decision on the merits and of a prima facie case for the main claim.

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38. What is the procedure for interim measures against immovable property within your jurisdiction?

Italy

The procedure for obtaining interim measures against immovable property is the same as the general procedure for obtaining any interim measures. Special rules apply only as regards the enforcement of interim measures against immovable property, as the creditor is required to request the filing of the interim measure in the public Real Estate Registry.

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39. What is the procedure for interim measures against movable property within your jurisdiction?

Italy

The procedure for obtaining and enforcing interim measures against movable property is the same as the general procedure for obtaining and enforcing interim measures.

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40. What is the procedure for interim measures against intangible property within your jurisdiction?

Italy

The procedure for obtaining interim measures against intangible property is the same as the general procedure for obtaining any interim measures. Special rules may apply as regards the enforcement of interim measures against intangible property, as the rules on enforcement follow the rules on attachment.

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41. What is the procedure to attach assets in your jurisdiction?

Italy

Attachment is the first act of enforcement proceedings and requires the prior filing with the judicial officer of both an enforceable order (ie, a certified copy of the recognised award or court judgment) and the writ of enforcement. Notably, until the enactment of Law 26 November 2021, No. 206 on the reform of civil procedure, the enforceable order must bear an order of enforcement (formula esecutiva) issued by a court clerk, a notary public or another public official.

The enforcement proceedings may be started only after 10 days have elapsed since service of the order and writ of enforcement on the debtor, unless the creditor obtains an exemption from the 10-day period from the court. Furthermore, the enforcement proceedings must be started within 90 days of service of the order and writ of enforcement, otherwise the order and the writ must be served anew.

It bears noting that according to the forthcoming reform of civil procedure if the creditor files a request under article 492-bis of the CCP (ie, a request that the judicial officer be allowed to search for attachable goods on all databases run by state administrations, including tax and social security registers) the creditor will be dispensed from obtaining the enforceable order and the 90-day time limit set out above will be stayed until the search has been carried out.

Italian law outlines a standard procedure for attachment, accompanied by special provisions for different types of assets. As a rule, attachment consists of a warning by the judicial officer not to dispose of the collateral specified by the officer, with a request to provide information about any other attachable asset. The debtor may avoid attachment by either asking for substitution of the attached assets or paying the amounts due directly to the judicial officer.

Attachment loses its effects if the applicant does not request the sale of the assets or direct assignment within 45 days.

Enforcement proceedings are, in general, ex parte. However, the debtor or a third party may file an opposition, thus triggering an adversarial phase that may consist of opposition to enforcement, opposition to specific acts of the proceedings or third-party opposition.

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42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Italy

Attachment against immovable assets deviates from the general rules in that it requires the filing of the attachment order with the Real Estate Registry. Moreover, the deadlines for the sale of the immovable assets are different.

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43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Italy

Attachment against movable property is directed at a debtor’s assets, including any debtor’s assets in the possession of a third party.

The judicial officer follows the general enforcement procedure with only minor deviations. Indeed, the officer proceeds by searching the debtor’s home, then his or her place of business or office for attachable assets.

Special procedures are set for the attachment of vehicles under article 521-bis of the CCP, which requires the order of attachment to be filed with the relevant public registry. Moreover, as far as the arrest of yachts and vessels is concerned, the relevant domestic procedures are set in article 649 et seq of the Italian Maritime Code, supplemented by the CCP. Italy is also a contracting state to the 1952 Brussels Convention relating to the arrest of seafaring ships, which was ratified in 1979.

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44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Italy

As regards attachment against intangible property, the situation varies depending on the specific type of intangible property at stake. In the event of intangible property resulting from a public registry (as in the case of several intellectual property rights), the attachment requires the filing of the order and the writ of attachment with the relevant registry. In the event of intangible property consisting of participation in the capital of a company incorporated into physical, paper-based share certificates, the attachment requires a physical annotation of the attachment on the shares on the part of the judicial officer, or the serving of the order with a writ of attachment on the debtor and on the company. In the event of dematerialised corporate shares, the attachment is effected by serving the order and writ of attachment on the debtor and on the intermediary in charge of the management of the dematerialised shares (it is still a matter of debate whether service is also required on the company whose dematerialised shares are being attached). If, instead, participation in the capital of a corporation is not certified by the issuance of any shares (as in the case of private limited liability companies), attachment of the corporate participation quota is effected by serving the order with a writ of attachment on the debtor and on the company, followed by the filing of the attachment in the public companies’ registry.

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45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Italy

The attachment of bank accounts, which follows the ordinary rules on attachment and garnishment set out in articles 543 to 554 of the CCP, is always possible provided that the attachment is based on an enforceable title issued in Italy or recognised as enforceable in Italy. Whether the bank account is opened in an Italian bank in Italy, or in an Italian branch or Italian subsidiary of a foreign bank, is irrelevant.

As to the attachment of bank accounts located abroad (whether of Italian or foreign banks), the attachment is possible only provided that there are in place international legal instruments governing the attachment. In the European Union, in particular, this is the case by virtue of Regulation (EU) No. 655/2014, establishing a European Account Preservation Order procedure.

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Recognition and enforcement against foreign states

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Italy

There are no special rules in Italian law governing recognition and enforcement against foreign states. However, Italy is a signatory of the ICSID Convention, so Italian courts are bound to recognise and enforce awards rendered under the umbrella of that instrument.

Beyond the framework of investment arbitration, when faced with the foreign state immunity exception in the context of enforcement proceedings, Italian courts are bound by customary international law, which is automatically incorporated within Italian law by article 10 of the Italian Constitution.

Usually, as for both immunity from jurisdiction and immunity from enforcement, the courts adopt a restrictive approach. Accordingly, jurisdictional immunity is construed as covering only disputes concerning the state’s public function (and not those concerning private undertakings, such as entrepreneurial or commercial ventures). Immunity from enforcement, on the other hand, is applied exclusively to those assets used by states for governmental purposes (rather than for commercial undertakings).

Although Italian law does not contain any express provision, a foreign state can waive its sovereign immunity. However, if a state waives its jurisdictional immunity, this does not imply an extension of the said waiver to the enforcement.

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47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Italy

Foreign states may be served only via diplomatic channels, through the prosecutor’s office. The Ministry of Foreign Affairs, when so requested, delivers the relevant documents to the foreign state’s embassy or to its head of state.

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48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Italy

Sovereign immunity may be relevant in this context in two respects.

First, jurisdictional immunity constitutes a principle of public policy precluding the grant of the exequatur to foreign awards that have adjudicated claims brought against acts carried out jure imperii by a foreign state or other state entities.

Second, states may invoke immunity from enforcement to prevent attachments and other measures aimed at property and other assets used by the foreign state to perform its sovereign functions.

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49. May award creditors apply interim measures against assets owned by a sovereign state?

Italy

In light of the overarching distinction made by Italian courts between a state’s public function and its private endeavours, the award creditor may apply for interim measures only against property and assets that are not used by the foreign state to perform its sovereign functions.

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50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Italy

The subjective distinction between a state’s public function and its private undertakings also applies objectively to the characterisation of its assets. Therefore, enforcements of awards are likely to be available only against non-sovereign assets, although this can happen without prior authorisation by the Italian government. Nonetheless, a review of case law suggests that Italian courts tend to adopt a restrictive approach and, if there is any doubt, tend to uphold the immunity defence. For instance, Italian courts have repeatedly denied enforcement on accounts held by foreign central banks, on assets belonging to customs agencies and on assets with attached scientific or cultural value. Conversely, enforcement has been granted on aeroplanes belonging to foreign national carriers and on state-owned freighters and ships.

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51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Italy

The likelihood of a waiver is scant. Therefore, enforcement on assets held in Italy by a foreign state generally requires current consent by that state. The sole foreseeable exception occurs when a state waives immunity from enforcement by earmarking beforehand certain assets to satisfy claims against it.

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52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Italy

Under Italian law, the creditor of an award rendered against a foreign state cannot directly attach assets held by an alter ego of the foreign state. On the basis of doctrines such as that of piercing the corporate veil, or alter ago, the creditor would first need to obtain a decision stating that the assets apparently owned by the alter ego actually belong to the state. Only on the basis of that decision could the creditor of the award then attach the assets held by the alter ego. The foregoing is without prejudice for the creditor’s right to obtain protective interim measures on the alter ego’s assets in anticipation of the decision holding that those assets belong to the state.

 

The authors wish to thank Gregorio Baldoli, junior associate at ArbLit, for his assistance with the preparation of this chapter.

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