Investment Treaty Arbitration

Investment Treaty Arbitration: Italy

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Italy

 

BIT Contracting Party or MIT 1

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts 2

Arbitration

Albania

(29 January 1996)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Algeria

(26 November 1993)

No

Yes

Yes

Yes

No

6 months

Yes

Yes

Angola

(21 May 2007)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Argentina

(14 October 1993)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Armenia

(13 January 2003)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Azerbaijan

(4 February 2000)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Bahrain

(28 June 2009)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Bangladesh

(20 September 1994)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Barbados

(21 July 1997)

Yes

Yes

No

Yes

No

3 months

Yes

Yes

Belarus

(12 August 1997)

Yes

Yes

No

Yes

 

6 months

Yes

Yes

Belize

(Not in force)

Text not available

Bolivia

(22 February 1992)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Bosnia and Herzegovina

(10 February 2005)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Brazil

(Not in force)

Text not available

Cameroon

(4 January 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cape Verde

(Not in force)

Text not available

Chad
(11 June 1969)

No

Yes

No

Yes

No

No

No

Yes

Chile

(8 February 1995)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

China (28 August 1987)

Text not available

Congo, Democratic Republic of

(not in force)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Congo

(10 January 2003)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Cote d’Ivoire

(not in force)

Text not available

Croatia

(12 June 1998)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Cuba

(23 August 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cyprus

(not in force)

Text not available

Djibouti

(8 February 2006)

Text not available

Dominican Republic

(25 November 2009)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Ecuador

(1 February 2005)

Text not available

Egypt

(1 May 1994)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Eritrea

(14 July 2003)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Ethiopia

(8 May 1997)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Gabon

(7 July 2006)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Georgia

(26 July 1999)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Ghana

(not in force)

Text not available

Guatemala

(3 March 2008)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Guinea

(20 February 1964)

No

Yes

No

Yes

No

No

No

Yes

Hong Kong

(2 February 1998)

Yes

Yes

No

Yes

Yes

6 months

Yes

Yes

India

(26 March 1998)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Indonesia

(25 June 1995)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Iran

(8 August 2003)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Jamaica

(9 November 1995)

Yes

Yes

No

Yes

No

3 months

Yes

Yes

Jordan

(17 January 2000)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Kazakhstan

(12 July 1996)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Kenya

(4 August 1999)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Korea Dem. People’s Rep. of

(not in force)

Text not available

Korea

(26 June 1992)

Yes

Yes

 

Yes

 

6 months

Yes

Yes

Kuwait

(21 May 1990)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Lebanon

(9 February 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Libya

(20 October 2004)

No

Yes

Yes

Yes

No

6 months

Yes

Yes

Macedonia

(28 May 1999)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Malawi

(21 March 2012)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Malaysia

(25 October 1990)

Yes

No

Yes

Yes

No

6 months

Yes

Yes

Malta

(15 October 1973)

No

Yes

No

Yes

No

6 months

Yes

Yes

Mauritania

(9 December 2009)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Mexico

(5 December 2002)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Moldova

(26 August 2001)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Mongolia

(1 September 1995)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Morocco

(26 April 2000)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Mozambique

(17 November 2003)

Text not available

Namibia

(30 May 2006)

Yes

Yes

No

Yes

Yes

6 months

No

Yes

Nicaragua

(22 May 2006)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Nigeria

(22 August 2005)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Oman

(23 January 1997)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Pakistan

(22 June 2001)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Panama

(12 October 2010)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Paraguay

(30 June 2013

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Peru

(18 October 1995)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Philippines

(4 November 1993)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Poland

(9 January 1993)

Yes

Yes

No

Yes

No

3 months

Yes

Yes

Qatar

(8 January 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Russian Federation

(7 July 1997)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Saudi Arabia

(22 May 1998)

Yes

Yes

Yes

Yes

 

6 months

Yes

Yes

Senegal

(16 December 2008)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Serbia

(18 May 2001)

Text not available

South Africa

(16 March 1999)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Sri Lanka

(20 March 1990)

Yes

Yes

Yes

Yes

No

Yes

No

Yes

Sudan

(not in force)

Text not available

Syrian Arab Republic

(13 November 2003))

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Tanzania

(25 April 2003)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Tunisia

(24 June 1989)

Yes

Yes

Yes

Yes

No

No

No

Yes

Turkey

(2 March 2004)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Turkmenistan

(Not in force)

Text not available

Uganda

(24 September 1999)

Text not available

Ukraine

(12 September 1997)

Text not available

United Arab Emirates

(29 April 1997)

Yes

Yes

Yes

Yes

No

Yes

Yes

Yes

Uruguay

(2 March 1998)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Uzbekistan (14 October 1999)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Venezuela3

(14 September 1993)

Yes

Yes

No

Yes

No

No

Yes

Yes

Vietnam

(6 May 1994)

Yes

Yes

No

Yes

No

6 months

Yes

No

Yemen

(3 May 2008)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Zambia

(2 December 2014)

Text not available

Zimbabwe

(not in force)

Text not available

Energy Charter Treaty 4

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Italy

Issue

Distinguishing features in relation to the definition of ‘investor’

Qualified investors

In line with the 2003 Italian Model BIT5 , most of the Italian investment treaties 6 qualify as investor any legal or natural person that invests or makes/effects an investment in the territory of the other Contracting Party. Nine investment treaties (eg Bangladesh, Bolivia, Chile, Congo, Cuba, Ethiopia, Mongolia, Pakistan, and Venezuela BITs7 ) also extend their scope to any legal/natural person that effected or intend to effect an investment. The Oman BIT applies to any natural/legal person intending to effect an investment in accordance with an investment agreement signed by the parties, while the Albania, Mexico and Russian Federation treaties apply to any legal/natural person entitled in accordance with the legislation to make an investment. The Venezuela BIT defines as investor any legal/natural person that has undertaken an irrevocable obligation to make an investment.

Seat of investor/Place of business

While all Italian investment treaties provide that a juridical person incorporated or duly organised according to the laws of a Contracting Party is an investor, most of them also require that such entities have their ‘headquarters’ or their ‘seat’ within the territory of a Contracting Party.

The Algeria BIT adopts a more restrictive approach requiring, in addition to incorporation and establishment, that an entity has ‘its principal centre of its economic interests’ in the territory of the other Contracting Party.

Control by national of a Contracting Party

Some Italian investment treaties extend the definition of investor as to include the subsidiaries and branches owned or controlled in anyway by a protected investor (eg Mauritania and Croatia BITs).

In some cases, it is expressly required that such subsidiaries and branches be registered and have their seat or headquarters in the territory of the other Contracting Parties (eg Jordan, Lebanon, Moldova and Panama BITs).

The Oman BIT also applies to any juridical person established outside the territory of the Contracting Party in which such Contracting Party or one of its national (natural or juridical person) holds a dominant interest.

Residents

Under Italian bilateral investment treaties, the term ‘investor’ is normally defined to include any natural person holding the nationality of a Contracting Party in accordance with its laws. In four investment treaties the scope ratione personae is defined in relation to the residence. In the Hong-Kong BIT, the term ‘investors’ means (with respect to Hong Kong) any physical persons who have the right of abode in its area. In the Korea BIT, the protection is granted to any natural/legal person, which is recognised as a resident by the legislations and regulations in force, who makes investments in the territory of the other Contracting Party. In the Uruguay and Poland BITs, only those who are citizens and residents of the other Contracting Party are afforded protection under the respective BITs.

The Sri Lanka BIT applies also to those who are residents of the maritime zones and continental platform, whereas the Tunisia BIT covers those who live in the ‘espaces maritimes relevant de la souveraineté et/ou de la juridiction de l’autre partie conformément au droit international et à ses lois et règlements internes’.

The scope of the Venezuela BIT does not cover: i) those nationals that are residents of the other Contracting Party; ii) the dual nationals that have their residence in the territory of one of the Contracting Parties.

The Argentina BIT does not apply: i) to those nationals that at the time of the investment have been residents for more than two years in the territory of the other Contracting Party; and ii) to those natural persons who for more than two years have had their residence in their country and at the same time their domicile in the territory of the other Contracting Party.

To qualify for protection under the ECT, an investor must have the nationality of an ECT member and its permanent residence in that Contracting Party in accordance with its applicable law.

Dual nationals

The Uruguay BIT provides that each Contracting Party will apply its internal law to the investment made by investors holding dual nationality. Exception is made for those investments made by dual nationals having their legal domicile or residence in the territory of the other Contracting.

As already mentioned in the previous section, the Venezuela BIT does not cover dual nationals that have their residence in the territory of one of the Contracting Parties.

Government

The Saudi Arabia BIT recognises as a Saudi investor the Government of Saudi Arabia, its financial institutions and other authorities such as the Saudi Arabian Monetary Agency, public funds and other similar governmental institutions.

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Italy

Issue

Distinguishing features in relation to the concept of ‘investment’

Assets which qualify for protection

Most of the Italian bilateral investment treaties define ‘investment’ to include ‘any kind of asset invested’ by a national. Some treaties expressly include assets reinvested (eg Argentina and Indonesia BITs) while some others extend their scope to returns (eg Qatar BIT). The Armenia BIT contains a more expansive definition of protected investment including any asset and any financial contribution made in kind or services.

All the Italian BITs require that an investment is made in accordance with the laws and regulations of the Contracting Party, regardless of the legal form chosen.

Almost any bilateral investment treaty contains a non-exhaustive list of examples of assets that qualify as investments. Three investment treaties specifically list the types of activities covered by the agreement (Chad, Guinea and Malta BITs). The Uruguay BIT contains an exhaustive list.

The Tunisia investment treaty does not give a definition of the term ‘investment’.

The definition of the term ‘investment’ in the ECT is broad: it means every kind of asset, owned or controlled directly or indirectly by a qualifying investor. In particular, as set out in the ECT, ‘investment’ includes all types of property and property rights; a company, shares, stocks, other forms of equity participation, bonds, and debt; claims to money; amounts derived from or associated with a qualifying investment; and any right conferred by law or contract or by virtue of any licences and certain permits to develop activities in the energy sector.

Indirect control of assets

The Hong-Kong BIT expressly includes in the definition of ‘investment’ assets held or invested directly or indirectly by a protected investor.

Connected/related activities

Nineteen investment treaties extend their application to all activities connected with an investment (Angola, Armenia, Azerbaijan, Belarus, Croatia Eritrea, Ethiopia, Georgia, Kazakhstan, Kenya, Lebanon Macedonia, Malawi, Moldova, Paraguay, Peru, Syria, Uganda and Uzbekistan BITs). Almost all of those treaties or the respective protocols contain a non-exhaustive list of such activities, which usually includes, inter alia, the organisation, control, operation maintenance and disposition of companies, agencies offices; the borrowing of funds; the purchase, issuance and sale of equity shares and other securities.

Exclusion of certain assets

Article 1.2 of the Macedonia BIT expressly excludes from the definition of ‘investment’ claims under business transactions whose object is acquiring goods or services or credits, unless it concerns loans which according to their aim and scope, have a form of participation (similar to loans for participation).

Commencement of treaty protection

A good number of Italian investment treaties protect all existing investments (eg Angola, Bangladesh, Belarus, Bolivia, Congo Democratic Republic, Congo, India, Kazakhstan, Jordan, Qatar, Egypt, Guatemala, Lithuania, Libya, Kuwait, Malawi and Mauritania BITs), whereas other cover only investments made after the entry into force of the treaty or after a specific date (eg Ethiopia and Morocco BITs).

Some treaties expressly provide that even if they apply to investment made before their entry in force, they do not cover claims that arose before that date (eg Argentina, Bosnia, Chile, Dominican Republic, Mexico and Paraguay BITs).

The Algeria BIT applies to investments made before its entry in force only upon specific request of the investor, while the Croatia/Italy BIT provides that the investment made before its entry in force must be still existing and operative.

Admission/approval of an investment

The Indonesia/Italy BIT only applies:

• To Italian investments that are approved in the Indonesian territory in accordance with the Law No. 1/1967 concerning Foreign Investments;

• To Indonesian investments that have been recognised by the Italian authorities to be in conformity with the Italian Laws.

Italian investments made (i) before the entry in force of the Law 1/1967, (ii) after the entry in force of such law but before the entry in force of the BIT and (iii) not yet officially recognised, can be covered by the treaty protection only after their admission by the host State in conformity with the Law No. 1/1967.

The Protocol of the Philippines BIT specifically provides that the treaty shall apply, with respect to the Republic of Philippines, to investments, which are qualified for registration and duly registered with the Central Bank of the Philippines and other appropriate government agencies.

The Iran BIT requires, with respect to Islamic Republic of Iran, the prior approval by the Organisation for Investment Economic and Technical Assistance of Iran for any investment, reinvestment and their modification.

Thirteen treaties provide that the host State shall authorise the investment of the foreign investors (Albania, Argentina, Bangladesh, Barbados, Bolivia, Congo, Cuba, Gabon, Jamaica, Pakistan, Poland, Turkey and Uruguay BITs).

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Italy

Issue

Distinguishing features of the fair and equitable treatment standard

The FET standard

Almost all Italian investment treaties provide that each Contracting Party shall ensure ‘fair and equitable treatment to investments of the investors of the other Contracting Party’. In some treaties, reference is made to just and fair treatment (eg Bosnia and Uzbekistan BITs) or to equitable and reasonable treatment (eg Korea, Tunisia and Sri Lanka BITs). In some cases, this obligation covers also investment’s returns (eg Hong Kong and Philippines BITs).

The Tanzania BIT provides that each Party shall ensure to investments fair and equitable treatment as accorded to the residents of its territory.

Customary international law

Only two investment treaties (Bahrein and Qatar BITs) expressly require the Contracting Parties to ensure fair and equitable treatment in accordance with the principles of international law, whereas in all the other treaties the standard is not qualified.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Italy

Issue

Distinguishing features of the ‘expropriation’ standard

Scope of expropriation standard

Most of the Italian investment treaties provide an obligation for the Contracting Parties not to nationalise/expropriate the investments of investors of the other Contracting Party. In some cases, such obligation applies also to the profits accruing from an investment (eg Malawi, Mexico, Philippines, Poland and Uruguay BITs) and, in the event of winding up procedures, to the proceeds of liquidation (eg Pakistan, Mongolia, South Africa, United Arab Emirates and Uruguay BITs).

Some treaties define ‘expropriation’ as any measure undertaken towards an investment affected by an investor of one of the Contracting Parties, which subtracts financial resources or other assets from the investment or causes substantial prejudice to the value of the same investment (Angola, Armenia, Azerbaijan, Bahrein, Belarus, Kazakhstan, Lebanon, Lithuania, Moldova, Peru and Uzbekistan BITs).

In the Egypt and Kuwait BITs reference is made to the ‘freezing of assets’.

In the Croatia BIT an expropriation is deemed to be occurred in case the host State adopts discriminatory measures, frustrates the good functioning of the investment or violates any of the investor’s rights. Such expropriation may also occur in the form of a specific attitude of certain officials or private individuals exercising public functions or even in case of omission of an official duty.

Indirect expropriation

Most of the Italian investment treaties expressly protect against indirect expropriation, whereas in other cases it is established that investment shall not be subject to measures having effects equivalent to nationalisation and expropriation (Congo, Eritrea, Ethiopia, Hong Kong, India, Indonesia, Iran, Korea, Macedonia, Malaysia, Mexico, Moldova, Morocco, Philippines, Poland, Qatar, Russian Federation, Saudi Arabia, Sri Lanka, Tanzania, Uganda, Uruguay and Uzbekistan BITs).

Special regimes

Some treaties deal specifically with the expropriation of:

• a company in which the foreign investor hold shares (eg Angola, Armenia, Georgia Hong Kong, India, Indonesia Kazakhstan Kenya Kuwait, Malawi, Panama Tanzania Uganda and United Arab Emirates BITs);

• a legal person jointly created by investors of both Contracting Parties (eg Armenia, Belarus, Congo Dem. Rep, Dominican Republic, Georgia Libya, Mauritania, Nicaragua, Paraguay Syria South Africa, and Uzbekistan BITs).

Expropriation in accordance with the ‘due process of law’

Ten Italian investment treaties require that any expropriation of an investment must occur under ‘due process of law’ (ie Algeria, Armenia Egypt, Eritrea, Iran, Lebanon, Macedonia, Moldova, United Arab Emirates and Uzbekistan BITs), whereas almost all the other investment treaties provide that an expropriation must occur ‘in conformity with the laws’. Five investment treaties (Mexico, Morocco, Panama, Peru and Uruguay BITs) require that expropriation is made in accordance with the procedures established by the host State’s legislation. Nine investment treaties (Azerbaijan, Bahrein, Cameroon, Indonesia, Malta, Oman, Sri Lanka, Tanzania and Tunisia BITs) provide that expropriation can be made only for public purpose and against payment of a compensation.

Compensation

Most of the BITs provide that in case of disagreement between the parties on the amount of compensation due to the expropriated investors, each party may have recourse to the dispute settlement mechanism provided in the investment treaty (eg Angola, Argentina, Bangladesh, Belarus, Bolivia, Cuba, Macedonia, Oman, Peru, Russian Federation, Sri Lanka and Uruguay BITs).

Recourse to local courts

Most of the BITs provide the exclusive jurisdiction of the host State’s competent judicial or administrative authorities to determine whether an expropriation has occurred and, if so, whether such expropriation, and any compensation thereof, conforms to the principles of international law, and to decide all other matters relating thereto (eg Angola).

Right to repurchase

Forty-three treaties provide that in case the property concerned has not been utilised, wholly or partially, for the purpose indicated at the moment of the expropriation the owner or his assignees are entitled to the repurchasing of the good (eg Macedonia, Malawi, Mauritania, Mexico Moldova, Mongolia, Nicaragua and Nigeria). The India BIT provides such right on a reciprocal basis.

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Italy

Issue

Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard

Scope of MFN treatment

Generally, the MFN protection contained in the Italian’s BITs applies to investments and ‘returns on investments’. Forty-six treaties also extend the scope of this obligation to activities connected to investments, providing a definition of such activities (eg Bangladesh, India and Yemen BITs). Thirteen treaties (Hong Kong, India, Korea Kuwait, Libya, Morocco, Oman, Philippines, Saudi Arabia, Sri Lanka, Tunisia, United Arab Emirates, and Vietnam) extend the MFN obligation to investments’ management, maintenance, use, enjoyment or disposal.

A minority of BITs explicitly extend the MFN guarantee to the investors’ entry and access conditions (eg Croatia, Cuba, Eritrea, Iran, Jamaica, Kazakhstan, Kenya, Kuwait, Lebanon, Lithuania, Mauritania, Moldova, Pakistan, Peru, Poland, Russian Federation, Sri Lanka, Syria, Venezuela, United Arab Emirates), while few others provide that the MFN obligation covers the work conditions that each Contracting Party shall grant to foreign investors (eg Oman).

Common exceptions to MFN treatment

All Italian BITs expressly state that the provision of ‘most-favoured nation’ and/or ‘national treatment’ does not apply to the benefits of membership of a custom union, monetary union or free trade area, nor to taxation agreements or taxation legislation.

In the Salini v. Jordan case8 , the claimant sought for the application of the MFN treatment provision – similarly formulated to the one contained in the 2003 Italian Model BIT – to the dispute settlement mechanism contained in the Italy-Jordan BIT. The Tribunal concluded that the MFN did not apply insofar as dispute settlement clauses are concerned.9 Notwithstanding this decision, this remains a highly disputed issue.10

National treatment

Almost all Italian BITs provide a national treatment standard together with the most favoured nation treatment. Eight treaties do not include such standard (Chad, Guinea, Malawi, Malta, Oman, Philippines, Poland and Sri Lanka).

Under the he Morocco BIT, the national treatment obligation leaves out ‘special incentives granted by one Contracting Party only to its nationals in order to stimulate the national economic development’.

Twenty-six treaties expressly provide that ‘in case, from the legislation of one of the Contracting Parties, or from the international obligations in force or that may come into force for the future for one of the Contracting Parties, should come out a legal framework according to which the investors of the other Contracting Party would be granted a more favourable treatment than the one foreseen in this Agreement, the treatment granted to the investors of such other parties will apply to investors of the relevant Contracting Party also for the outstanding relationships’ (eg Jordan, Macedonia and Uganda BITs).

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Italy

Issue

Distinguishing features of the ‘protection and security’ standard

Scope

Nineteen treaties contain the obligation to provide protection and security despite the fact that such standard is not included in the 2003 Italian Model BIT (Algeria, Bahrein, Cameroon, Cuba, Eritrea, India, Iran, Lebanon, Libya, Malawi, Malaysia, Mexico, Panama, Qatar, Saudi Arabia, Sri Lanka, Tanzania, Tunisia and United Arab Emirates, BITs).

The formulation of this standard varies. Some BITs provide ‘full protection and security’, while some others only require ‘adequate protection’ or simply ‘protection’ (eg Malawi, Sri Lanka and Tunisia BITs). Three investment treaties oblige the host State to guarantee ‘full legal protection’ (Iran, Mexico and Panama BITs).

Qualification of the obligation

In the United Arab Emirates BIT the obligation to provide full protection and security should be consistent to that required under international law. In the Libya BIT the protection and security granted should be in accordance with the national legislation, as far as this is compatible with the investment treaty and international law.

In the Tanzania BIT investors shall enjoy protection and security as accorded to the residents in each Contracting Party.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Italy

Issue

Distinguishing features of any ‘umbrella clause’

Scope

Only three Italian investment treaties (Congo, Hong Kong and Tanzania BITs) contain a clear umbrella clause, whereas some Italian BITs only includes a clause – similar to the one found in the 2003 Italian Model BIT11 – providing that each Contracting Party shall create and maintain in its territory a legal framework apt to guarantee to investors the continuity of legal treatment, including the compliance, in good faith, of all undertakings assumed with regard to each specific investor. Such provision is not an umbrella clause properly speaking.12

Qualification of the obligation

The formulation of the umbrella clause is almost the same in the three above mentioned treaties. In the Hong Kong BIT each Contracting Party shall observe any obligation it may have entered into with regard to investments of investors of the other Contracting Party. The umbrella clauses contained in the Congo and Tanzania BITs, in addition to the above formulation, make clear that the term ‘investors’ mean any nationals or companies of the other Contracting Party.

9. What are the other most important substantive rights provided to qualifying investors in this country?

Italy

Issue

Other substantive protections

Armed conflict/civil unrest

Most of the Italian bilateral investment treaties contain provisions that require the host State to compensate investors of the other Contracting Party in case of armed conflict or civil unrest.

Thirty-six BITs (eg Libya BIT) guarantee investors of Contracting Parties ‘most favoured nation’ treatment in regards to such obligation.

Twenty-four BITs (eg Cameroon BIT) also provide for ‘national’ treatment in such circumstances.

Free transfer of payment

Most of the Italian BITs guarantee investors of Contracting Parties to freely transfer investments, investment returns and profits, provided that investors have complied with all fiscal tax obligations.

Forty-four BITs (eg Moldova and Turkey BITs) require the host State to guarantee the most favoured nation treatment in regards of such obligation.

Under the Argentina, Congo Democratic Republic, Dominican Republic Mauritania, Mexico, Nicaragua and Yemen BITs, the host State can suspend the obligation should it suffer serious balance difficulties.

The Dominican Republic BIT allows a Contracting Party to disregard this obligation in case of ‘bankruptcy, insolvency or protection of the rights of creditors; criminal or administrative violation related to definitive sentences; breach of the agreement obligations with the labour legislation of the Party which the investment is assigned; guarantee for execution of final decisions in the contentious suit’13 .

Non-impairment

Most of the Italian investment treaties include an obligation not to impair the management, maintenance, use, enjoyment or disposal of investments (eg Kazakhstan, Kenya, Nigeria and Uganda BITs).

The Kazakhstan and Lithuania BITs specifies that ‘for purposes of dispute resolution a particular measure may be found to be arbitrary or discriminatory notwithstanding the fact that a Contracting Party to a dispute has had or exercised the opportunity to review such measure in the Courts or administrative Tribunals of a Contracting Party.’

Effective means

Fourteen treaties request the host State to provide investors with effective means of asserting rights (eg Angola, Azerbaijan, Belarus, Bosnia and Herzegovina, Croatia, Eritrea, Ethiopia, Kazakhstan, Kenya, Lithuania, Macedonia, Moldova, Peru and Uzbekistan BITs).

Local products

Some BITs prevent the host State from imposing any limitation to the sale of products on domestic or international markets, or from imposing that goods must be procured locally (eg Azerbaijan, Bahrein, Belarus, Croatia, Dominican Republic, Eritrea, Ethiopia, Georgia, Guatemala, Kazakhstan, Kenya, Jordan, Lithuania, Moldova, Nicaragua, Peru, Uzbekistan, Uganda and Yemen BITs).

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Italy

Issue

Procedural rights

Agreement between the parties

Many Italian BITs provide that in case the investor and one of the Contracting Parties have stipulated an investment agreement, the procedure foreseen in such agreement shall apply (eg Azerbaijan, Ethiopia, Moldova and Uzbekistan).

Fork-in-the-road

As in the 2003 Italian Model BIT, most of the BITs provide that in the event a dispute cannot be settled amicably, then the investor has the right to submit the dispute to three different fora: i) the competent local Courts of the host State; an ad hoc Tribunal according to the UNCITRAL Rules; or iii) ICSID. Usually such clause does not embody a fork-in-the-road provision, as the three options do not seem to be exclusive.

Only few Italian BITs (eg Dominican Republic, Lebanon, Libya, Paraguay and Saudi Arabia BITs) contain a fork-in-the-road clause. Such a clause provides that the investor must choose between the litigation of its claims in the host state’s domestic courts or through international arbitration and that the choice, once it has been made, is final. The Mexico BIT expressly states that if an investor initiates proceedings before a national tribunal with respect to a measure that is alleged to be a breach of the BIT, the dispute may only be submitted to arbitration if the competent national tribunal has not rendered judgement in the first instance on the merits of the case.14 In case the investor submits its claim to arbitration it may not initiate or continue proceedings before a national tribunal.

As to the ECT, Italy has not given its unconditional consent to the submission of a dispute to international arbitration or conciliation where the investor has previously submitted a dispute to local courts or to the agreed dispute settlement procedure.15

Access to international arbitration

According to the provisions of the Uruguay BIT, investors must submit their dispute to local courts for 18 months before resorting to international arbitration. Investors can have recourse to international arbitration in case local courts render a decision in violation of international law, or in any case of deny of justice.

Under the Jamaica BIT, in case of disputes concerning expropriation and nationalisation, parties are obliged to first submit their claims to local courts for at least 18 months and then they can have access to arbitration. Such precondition is excluded in for all other kind of disputes.

The Vietnam BIT provides that an investor can bring a claim to local courts or it can entail a conciliation procedure according to the 1976 UNCITRAL Rules or the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), once this latter Convention would be signed by Vietnam.

UNCITRAL/ICSID Arbitration/Ad hoc arbitration

Almost all the Italian investment treaties offer arbitration for the resolution of disputes between foreign investor and host State giving the parties a choice between ICSID, UNCITRAL or ad hoc arbitration.

Only few treaties exclude the possibility to submit a dispute to ICSID (Eritrea, Korea, Nicaragua and Oman BITs), while in the Chad, Jordan, Philippines and Saudi Arabia BITs ICSID arbitration is the only available dispute settlement mechanism.

A distinction is made in the Barbados BIT: disputes concerning expropriation or nationalisation can be submitted to ICSID or to arbitration under the UNCITRAL Rules, while all the other disputes can be brought before a national court or an ICSID tribunal.

A similar provision is contained in the Cuba/Italy BIT.

Most of the treaties that provide for UNCITRAL arbitration include specific rules to be followed by the arbitral tribunal as, for example, to the constitution of the arbitral tribunal (eg Eritrea and Peru BITs). The Mexico BIT is very detailed, providing rules on consolidation, seat of arbitration and enforcement of awards.

Three treaties provide for UNCITRAL arbitration on a residual basis, only in case the parties disagree on the mechanism to be used for the resolution of their disputes (Hong Kong, Poland and Indonesia BITs).

Under the Egypt and Kuwait BITs, after a 6 months cooling off period, Parties must submit their dispute to the conciliation procedure provided in the ICSID Convention. Only in case that such conciliation fails, Parties may commence arbitration under the UNCITRAL Rules.

Cuba, Guinea and Malta BITs contain a detailed ad hoc arbitration procedure to be followed.

Applicable law

Italian BITs providing for ICSID arbitration do not contain any indication on the applicable law which, therefore, should be determined in accordance with art. 42 of the ICSID Convention.

With respect to ad hoc arbitration, Italian BITs generally provide that an arbitral tribunal must have regard to the investment agreement, to the relevant national legislation and to the principles of international law (eg Angola, Argentina, Bahrein, Chile, Congo Democratic Republic, Congo, Croatia, Dominican Republic, Eritrea, Kenya, Gabon, Georgia, Guatemala, Lebanon, Lithuania, Malawi, Mauritania, Oman, Sri Lanka, Tanzania, Uganda and Venezuela BITs).

Article 26.6 of the ECT provides for the application of the ECT and applicable rules and principles of international law to the merits of the dispute.

Exceptions

Thirty-three treaties include a provision that requires the Contracting Parties to refrain from negotiating through diplomatic channel any matter pending before an arbitration or judicial procedure, except if one of the Contracting Party has failed to comply with the ruling of the arbitral or judicial tribunal (eg Angola, Bahrein, Barbados, Belarus, Bosnia and Herzegovina, Cameroon, Chile, Congo Democratic Republic, Congo, Croatia, Dominican Republic, Egypt, Ethiopia, Gabon, Georgia, Guatemala, India, Kenya, Jamaica, Jordan, Lebanon, Lithuania, Macedonia, Mauritania, Moldova, Mongolia, Morocco, Nigeria, Oman, Tanzania, Turkey, Venezuela and United Arab Emirates BITs).

Eight treaties provide that Parties shall not raise objections based on the fact that the investor has received indemnities from insurance companies in respect of some of all damages or losses (Argentina, Cameroon, Chile, Cuba, Jamaica, Lebanon, Mexico Nigeria and Venezuela BITs).

11. What is the status of this country’s investment treaties?

Italy

Italy being a member of the European Union (EU), Italian investment treaties must be considered in the new legal framework introduced by the Lisbon Treaty which conferred to the EU exclusive competence with regard to ‘foreign direct investments’. According to Article 207 of the Treaty on the Functioning of the European Union (TFEU) – introduced by the Lisbon Treaty – the EU has now exclusive competence to negotiate and conclude investment treaties. According to EU Regulation No. 1219/2012, Italy is under the obligation to notify all Italian investment treaties to the EU Commission and, subsequently, to eliminate all inconsistencies of the Italian investment protection regime with EU-Law. Furthermore, pursuant to EU Regulation No. 1219/2012, Italy may not renegotiate an existing investment treaty, or conclude a new investment treaty without the prior consent of the EU Commission.

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Italy

Government entity to which claim notices are sent

The notice should be addressed to the Italian Government in the person of its Prime Minister.

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Italy

Government department which manages investment treaty arbitrations

The Foreign Affairs Department jointly with the Department of Legal and Legislative Affairs (DAGL).

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Italy

Internal/external counsel

The Italian State is represented before national and international courts by a department of State lawyers, called Avvocatura dello Stato which is an organ belonging to the structure of the Prime Minister Administration composed of lawyers employed by the State. The existence of the Avvocatura dello Stato does not prevent the State from hiring external counsels in a specific proceedings. No public procurement is needed when the State hires an external counsel.

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Italy

Washington Convention implementing legislation

The ICSID Convention was ratified by Italy with the Law n. 1093 of May 10 and it is in force as of 28 April 1971.

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Italy

New York Convention implementing legislation

With the Law n. 62 of January 19, 1968 Italy ratified the New York Convention which has been in force since 1 May 1969.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Italy

Legislation governing non-ICSID arbitrations

The legal regulation of arbitration is set forth in the Code of Civil Procedure enacted by Royal Decree of 28 October 1940 no. 1443, specifically in Title VIII of Book Four (Arbitration) comprising Articles 806-840, amended by Law no. 28 of 9 February 1983 (Modifications to the Regulation of Arbitration), by Law no. 25 of 5 January 1994 (New Provisions Relating to Arbitration and Regulation of International Arbitration) and, more recently, by Legislative Decree of 2 February 2006 no. 40 (Modifications to the Code of Civil Procedure with regard to the Proceedings before the Supreme Court and Arbitration). Law no. 25 of 1994 introduced for the first time into the Italian legal system a specific regulation for international arbitration (Chapter VI of Title VIII).16

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Italy

Compliance with adverse awards

No publicly available awards have been rendered against Italy under its investment treaties. A claim has been recently brought against Italy by Blusun S.A., Jean-Pierre Lecorcier and Michael Stein (Belgian, German and French investors) under the ECT but no award has been rendered yet.

19. Describe the national government’s attitude towards investment treaty arbitration

Italy

Attitude of government towards investment treaty arbitration

The first investment treaty to provide for investor-State arbitration with unqualified State consent was the BIT concluded between Italy and Chad in 1969 (although the first bilateral investment treaty was the Germany-Pakistan BIT in 1959)17 .

Up today Italy has signed more than 90 BITs. Although in the last six years, Italy has signed, only two BITs (with Panama and Turkmenistan in 2009), the standard of protection provided in these treaties is as high as in the BITs concluded by the Italian Government in the past years.

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Italy

Attitude of local courts towards investment treaty arbitration

Italian Courts have never been requested to enforce an investment arbitration award against Italy. However, they have always shown a pro-arbitration attitude in the recognition and enforcement in the international commercial sphere. According to data collected by the Court of Appeal of Milan, 38 requests for recognition and enforcement of foreign awards were filed with the same Court from 2005 to 2012. Only three were rejected: one because the subject matter of the dispute could not be submitted to arbitration (the dispute concerned an agreement between undertakings which was deemed to be a violation of Italian antitrust law), and the other two for lack of formal requirements (the translation in Italian was not duly filed or there was no evidence of the arbitration agreement).18

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Italy

Italy does not have a so-called ‘Investment Law’. However, it provides investors with a legal framework apt to promote and protect foreign investments.19

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Italy

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

MIGA

By Law 134 of 29 April 1988, Italy ratified the Convention establishing the Multilateral Investment Guarantee Agency (MIGA). MIGA provides guarantees against non-commercial risks (such as political risk) to Italian investors who invest in the development of member countries. It covers the following risks: restrictions on the transfer; expropriation; breaking of contracts; interferences caused by wars and civil disturbance. To be eligible for assistance investments must be made in a in a developing country and on a long term-basis. Projects must be economically and financially viable and meet the development goals of the country in which they are made.

State-owned enterprises are eligible provided that they operate on a commercial basis.

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Italy

Awards

Burimi SRL and Eagle Games SH.A v. Republic of Albania (ICSID Case No. ARB/11/18), Italy-Albania BIT, Final Award rendered on 29 May 2013.

Impregilo S.p.A. v. Argentine Republic, (ICSID Case No. ARB/08/14), Italy-Argentina BIT, Order for the discontinuance issued on 27 October 2010.

Impregilo S.p.A. v. Argentine Republic, (ICSID Case No. ARB/07/17), Italy- Argentina BIT, Final Award rendered on 21 June 2011 (followed by the annulment proceeding).

Toto Costruzioni Generali S.p.A. v. Republic of Lebanon (ICSID Case No. ARB/07/12), Italy-Lebanon BIT, Final Award rendered on 7 June 2012 (followed by the annulment proceeding, lately discontinued on 15 February 2013).

Giovanni Alemanni and others v. Argentine Republic (ICSID Case No. ARB/07/8), I taly-Argentina BIT, Order for Discontinuance of the Proceeding issued on 14 December 2015.

Ares International S.r.l. and MetalGeo S.r.l. v. Georgia (ICSID Case No. ARB/05/23), Georgia-Italy BIT, Final Award rendered on 28 February 2008.

Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt (ICSID Case No. ARB/05/15), Italy-Egypt BIT, Final Award rendered on 1 June 2009 (followed by the annulment proceeding, lately discontinued on 26 July 2010).

Saipem S.p.A. v. People’s Republic of Bangladesh (ICSID Case No. ARB/05/7), Italy-Bangladesh BIT, Final Award rendered on 30 June 2009.

LESI, S.p.A. and Astaldi, S.p.A. v. People’s Democratic Republic of Algeria (ICSID Case No. ARB/05/3), Italy-Algeria BIT, Final Award rendered on 12 November 2008.

Alstom Power Italia SpA and Alstom SpA v. Republic of Mongolia (ICSID Case No. ARB/04/10), Italy-Mongolia BIT, ECT, Order for Discontinuance of the Proceeding issued on 13 March 2006.

Consortium Groupement L.E.S.I. - DIPENTA v. People’s Democratic Republic of Algeria (ICSID Case No. ARB/03/8), Italy-Algeria BIT, Final Award rendered on 10 January 2005.

Republic of Italy v. Republic of Cuba, ad hoc arbitration, Italy-Cuba BIT, Final Award rendered on 15 January 2008.21

Impregilo S.p.A. v. Islamic Republic of Pakistan (ICSID Case No. ARB/03/3), I taly-Pakistan BIT, Order for Discontinuance of the Proceeding issued on 25 September 2005.

Salini Costruttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan (ICSID Case No. ARB/02/13), Italy-Jordan BIT, Final Award rendered on 31 January 2006.

Hussein Nuaman Soufraki v. United Arab Emirates (ICSID Case No. ARB/02/7), Italy-United Emirates BIT, Final Award rendered on 7 July 2004, (followed by annulment proceeding concluded with the annulment of the Award on 5 June 2007).

Impregilo S.p.A. v. Islamic Republic of Pakistan (ICSID Case No. ARB/02/2), Italy-Pakistan BIT, Order for Discontinuance of the Proceeding issued on 11 June 2002.

Impregilo, S.p.A and Rizzani De Eccher S.p.A. v. United Arab Emirates, (ICSID Case No. ARB/01/1), Italy-United Arab Emirates BIT, Order taking note of the discontinuance issued by the Secretary-General on 7 August 2001.

Consortium R.F.C.C. v. Kingdom of Morocco (ICSID Case No. ARB/00/6), Italy-Marocco BIT, Decision of the ad hoc Committee on the Application for Annulment of Consortium R.F.C.C. rendered on 18 January 2006.

Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco , (ICSID Case No. ARB/00/4), Italy-Morocco BIT, Order taking note of the discontinuance issued by the Secretary-General on 4 February 2004.

Ambiente Ufficio S.p.A. and others v. Argentine Republic, (ICSID Case No. ARB/08/9) , Italy-Argentina BIT, Order taking note of the discontinuance issued by the Secretary-General on 28 May 2015.

Pending proceedings

Salini Impregilo S.p.A. v. Argentine Republic (ICSID Case No. ARB/15/39), Italy-Argentina BIT.

Hydro S.r.l. and others v. Republic of Albania (ICSID Case No. ARB/15/28), Italy-Albania BIT.

Albaniabeg Ambient Sh.p.k, M. Angelo Novelli and Costruzioni S.r.l. v. Republic of Albania (ICSID Case No. ARB/14/26), Italy-Albania BIT.

Impresa Grassetto S. p. A., in liquidation v. Republic of Slovenia (ICSID Case No. ARB/13/10), Italy-Slovenia BIT.

ASA International S.p.A v. Arab Republic of Egypt, (ICSID Case No. ARB/13/23), Italy-Egypt BIT.

Marco Gavazzi and Stefano Gavazzi v. Romania (ICSID Case No. ARB/12/25), Italy-Romania BIT.

Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No. ARB/14/3), ECT.

Eskosol S.p.A. in liquidazione v. Italian Republic (ICSID Case No. ARB/15/50), ECT.

Belenergia S.A. v. Italian Republic (ICSID Case No. ARB/15/40), ECT.

Silver Ridge Power BV v. Italian Republic (ICSID Case No. ARB/15/37), ECT.

Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No. ARB/14/3), ECT.

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Italy

Article/Book

Federico Ortino, ‘Italy’, in Chester Brown (ed), Commentaries on Selected Model Treaties , (OUP 2013).

Piero Bernardini, ‘National Report for Italy,’ in Jan Paulsson (ed), International Handbook on Commercial Arbitration , Kluwer Law International.

Notes

1 The text of the treaties signed by the Italian Government are available at: http://investmentpolicyhub.unctad.org/IIA/CountryBits/103#iiaInnerMenu and at: http://itra.esteri.it/ (last accessed on 13 January 2015).

2 The answer ‘Yes ’ indicates that the treaty in question expressly grants an investor the right to bring a dispute under the treaty before local courts while ‘no’ means that the right to use local courts is not express in the treaty and therefore subject to local law.

3 Italy and Venezuela signed another BIT on 14 February 2001, which is not in force yet.

4 On 30 December 2014 Italy notified the Government of the Portuguese Republic, the ECT depository pursuant to article 49 ECT, of its decision to withdraw from the ECT. Pursuant to article 47(3) of the ECT, Italy’s withdrawal took effect upon the expiry of one year after the date of notification, in January 2016. However, the provisions of the Treaty will continue to apply to investments made in Italy before such date for a further 20 years.

5 A copy of the 2003 Italian Model BIT is available at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/2819 (last accessed 13 January 2015).

6 In this study we will indifferently refer to the Italian Bilateral Investment Treaties as BITs or investment treaties, whereas it will be clearly specified any reference to the ECT.

7 Considering that this study concerns the Italian investment treaties regime, in listing the relevant BIT, we will refer only to the other contracting party of the treaty (ie we will refer to the Italy-Albania BIT as the Albania BIT).

8 Salini Costruttori SpA and Italstrade SpA v Hashemite Kingdom of Jordan (ICSID Case No. ARB/02/13), Italy-Jordan BIT, Final Award 31 January 2006

9 Ibid, para. 118.

10 Federico Ortino, ‘Italy’, in Chester Brown (ed), Commentaries on Selected Model Treaties , (OUP 2013). 334.

11 2003 Italian Model BIT, III.4.

12 See Salini Costruttori SpA and Italstrade Sp. v Hashemite Kingdom of Jordan (I CSID Case No. ARB/02/13), Italy-Jordan BIT, Decision on Jurisdiction, 29 November 2004, para. 126.

13 Dominican Republic BIT, article VII.

14 Such provision does not apply to the administrative proceedings before the administrative authorities executing the measure that is alleged to be a breach (See Italy-Mexico BIT, Annex on the dispute settlement mechanisms, Section II, Article 1.2.).

15 See ECT article 26.3.b.i.

16 For more information: Piero Bernardini, ‘National Report for Italy’, in Jan Paulsson (ed), International Handbook on Commercial Arbitration , Kluwer Law International.

17 Federico Ortino, ‘Italy’, in Chester Brown (ed), Commentaries on Selected Model Treaties , (OUP 2013), 341.

18 Ferdinando Emanuele, Milo Molfa, et al., Chapter X. ‘Recognition and enforcement in Italy of foreign arbitral awards’ in Ferdinando  Emanuele and Milo Molfa, Selected Issues in International Arbitration: The Italian Perspective , (Thomson Reuters 2014), 214.

19 Federico Ortino, ‘Italy’, in Chester Brown (ed), Commentaries on Selected Model Treaties , (OUP 2013), 321 ff.

20 The awards and cases are listed in according to a chronological filing order from the latest registered to the oldest one.

21 The proceeding was initiated on 16 May 2003.

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