Italian citizens, and most notably legal professionals, have many means to assess another party’s assets. First and foremost, companies are registered by the local Chamber of Commerce, an institution that keeps the recordings of the businesses whose registration is mandatory (or those registering on a voluntary basis) in a given geographical area. This entails that the records available by the Chamber of Commerce for a company or undertaking allow third parties to keep track of the shareholders, quotaholders, and any title registered by creditors on said shares or quotas. Moreover, interested parties have access to a public registry of real estate assets (Conservatoria dei registri immobiliari), where real estate transactions are tracked, allowing third parties to verify who is the owner of a given asset. In addition, parties may also resort to private investigators or to a procedure managed by the court’s officials, which will be explained in 2.4 Post-judgment Procedures for Determining Defendants’ Assets.

Italian civil law provides for different types of national judgments.

The first major distinction in Italian jurisdiction is between judgments that have become final and binding and those that can still be appealed.

A judgment becomes final (“res iudicata”) either when all appeals against it have been exhausted, or when they are no longer admissible because of the expiration of statutory time limits. Once the decision has become final, it is binding on all the parties, their heirs and their successors in title.

There are essential differences in the nature and purpose of the different types of judgments, such as:

• those for monetary or injunctive relief (“sentenze di condanna”);
• those which are intended to establish the existence or non-existence of a right (declaratory judgments, “sentenze di accertamento”); and
• those that can create, modify or extinguish a legal status (“sentenze costitutive”, literally “constitutive judgments”).

According to Italian case law, among the various types of judgments, only those falling within the first category are immediately enforceable, ie, the judgment itself is the title for the commencement of enforcement proceedings.

This position was recently confirmed by the Italian Supreme Court, which stated that, in view of the wording of Article 282 of the Code of Civil Procedure (CCP), the enforceability of declaratory or constitutive judgments is suspended until the judgment becomes res iudicata.

Another basic distinction is the one between:

• “Final” judgments, which rule on all or part of the merits of the claim or on procedural issues (eg, how the party or, more occasionally, the court, on its own initiative, challenges procedural irregularities or lack of standing).
• “Non-final” judgments, which, for example, are those that rule on the merits of the claim, (“an”), but defer to the investigation stage for the determination of the quantum, for instance by ordering a technical assessment.

Finally, with the recent reform of Italian civil procedure, pursuant to Legislative Decree 149/2022 (the “Cartabia Reform”), two new types of summary judgments have been introduced, governed respectively by Article 183 ter of the CCP and Article 183 quater of the CCP.

These are the “order of admission” and the “order of rejection” of the claim, which the judge may issue immediately after the provisions governing the first hearing (Article 183 of the CCP).

Apart from some minor differences, the two orders present several common features, which it is worth highlighting.

In particular, from the point of view of the conditions for their application, it should be noted that:

(i) these orders can only be issued in the context of the proceedings before the Court of First Instance;

(ii) they can only be issued when the dispute concerns disposable rights, ie, disputes of a pecuniary nature, excluding those concerning family matters or personal interests;

(iii) they must be requested by the interested party;

(iv) they may be issued only after a judicial assessment as to whether or not the claim is (manifestly) well-grounded or unfounded;

(v) both orders have the same features – provisional enforceability, can be challenged, cannot become res iudicata and lack of effect in other proceedings; and

(vi) finally, given their function of speeding up the proceedings and their ability to rule on the entire procedure if the claim appears to be, respectively, manifestly well-founded or manifestly unfounded, both orders must decide also on the costs of the litigation.

Once the creditor has obtained a suitable enforcement title the enforcement procedure can begin.

Before starting any proceedings, the creditor must serve on the debtor a formal notice (ie, atto di precetto) informing the latter of the fact that, within ten days from the date of service, the creditor will commence enforcement proceedings. The debtor may pay all the amounts due within the same deadline (ie, ten days from the service), thus avoiding any proceedings. Should the debtor fail to pay within the deadline, the enforcement proceedings may begin.

Any kind of enforcement (see below) starts with a foreclosure order (“atto di pignoramento”), served on the debtor by the bailiff and issued to seize the debtor’s assets indicated in the foreclosure.

Once the foreclosure order has been served, the debtor may remain in possession of the foreclosed assets but loses the right to dispose of them. The court may also appoint a judicial custodian who will manage the attached assets during the enforcement proceedings (eg, by receiving rental fees when the immovable asset is rented).

In Italy, there are three types of foreclosure, based on the assets involved.

Immovable Assets

The ownership of immovable property can be easily established by consulting public registers (see 1.1 Options to Identify Another Party’s Asset Position), by which the existence of other foreclosures and/or of liens (eg, mortgages) may also be verified on the same assets.

On one hand, this type of enforcement should guarantee the creditor in relation to the recovery of the credit, although it depends on the price fixed for the sale of the assets foreclosed and on the amount of the credit.

On the other hand, the disadvantages of this procedure are its time and cost: an enforcement proceeding may last some years in Italy (the average duration is estimated at four to five years), depending on how attractive the assets are on the market.

Furthermore, the procedure’s costs are high, and the creditor usually has to pay them in advance, possibly recovering them at the end of the proceedings (always depending on the price the asset is sold).

In view of the high costs and time involved, this procedure is often used to recover medium to high-value debts.

Movable Assets

As a rule, the subject of the attachment is the debtor’s movable property.

The bailiff must search for the objects to be attached with due care and respect in the debtor’s property and all the places belonging to the debtor, as well as on the debtor’s person.

If the objects are found on the debtor’s property, it is legally presumed that they belong to the debtor, even if they have been purchased by third parties.

Other places where the bailiff may search movable assets owned by the debtor are those where the debtor carries out his/her professional or commercial activities, provided they are not public.

The attachment must be made on the items that the bailiff considers the most likely to be sold on the market, within a limit equal to the amount of the credit for which the creditor is proceeding, which may be increased by half (to ensure with the attachment all costs and legal expenses of the proceedings, as well as interests accruing during the proceedings).

In any event, the bailiff must give priority, in order, to cash, valuables, debt securities and any other asset that may be purchased.

Once the attachment activities are concluded, the bailiff hands over the attached assets to the court clerk’s office.

Alternatively, the assets attached may remain in the possession of the debtor, who is also appointed as its judicial custodian and is entitled to manage and preserve the assets in the interest of the creditor.

Third-Party Debt Order

This procedure is aimed at attaching receivables or assets of the debtor that, at the moment of the enforcement procedure, are in the possession of third parties.

The most common example in practice is the attachment of the debtor’s bank account or salary, which can be attached only for an amount equal to 1/5 of the monthly wage.

In this very common case, the procedure starts with a third-party attachment order, which is served not only on the debtor but also on the third parties who keep the debtor’s assets (eg, deposited funds) or who have an obligation to pay a certain amount to the debtor.

This procedure is particularly effective, provided that the creditor must indicate (and therefore be aware of) assets kept and/or receivables owned by third parties. The proceeding is usually fast, and Italian laws have recently implemented some further measures to ensure a quick response from the third party in order to enable the creditor to decide whether to proceed, according to the third party’s confirmation (or not).

Times

In the Italian jurisdiction, it is very difficult to determine the length of the proceedings to enforce domestic judgments beforehand. The duration of enforcement proceedings depends on a wide range of factors, including what type of procedure is undertaken and the time needed to sell attached assets.

Among the different types of enforcement indicated above, the authors can point out that third-party enforcement is the quickest and least expensive, provided that the creditor has sufficient information on the debtor’s assets and/or receivables kept by or deposited at third parties.

The average duration of a proceeding depends on the type of enforcement procedure chosen, so it may vary from a few months, needed for the creditor to obtain a third-party debt order, to some years (from 2 to 6) in case the procedure concerns the debtor’s immovable assets.

Costs

The first issue to consider in relation to the costs of the proceedings is that they depend on the value of the claim asserted by the creditor(s), based on which both legal costs (including professional fees for attorney and experts appointed by the court, who are necessary to estimate the value of the attached assets to indicate its price for the auction) and expenses are calculated.

Duration may vary a lot depending on the type of enforcement procedure and, more specifically, on the operations that the specific proceeding requires.

For example, the costs to be budgeted prior to the commencement of procedure concerning real estate assets will often be substantial, because the proceedings costs are high, as they include professional fees for the expert appointed by the court to estimate the assets’ value, those for the professional appointed for the activities necessary for the sale of the assets and those for all the activities for the custody and maintenance of the assets.

With the Cartabia Reform, the post-judgment procedure to determine which assets are in possession of the defendant and where they are located was implemented through the new Article 492bis of the CCP.

Therefore, from 22 June 2023, it is possible for a creditor who has obtained an enforceable title (ie, not only a judgment, but also an order provisionally enforceable, or the orders provided for by Articles 183 ter and 183 quater of the CPP – see 2.1 Types of Domestic Judgments) to ask for the bailiffs to access to different databases – which are not public – including the Tax Registry or the Archive of Financial Relations search for the debtor’s assets and inform then the creditor, who will decide which assets to attach.

Looking at the debtor’s tax returns, it will also be possible to trace the existence of registered leases, the income from employment or retirement benefits, as well as the ownership of lands and buildings (although some of this information can also be found in the Land Registry and the public registry of real estate, ie, Conservatoria dei Registri Immobiliari, which are public).

If direct access to the databases is not possible, eg, due to the failure of the technological facilities, the bailiff certifies the impossibility to the requesting creditor so that, pursuant to Article 492bis of the CCP, the creditor may then apply directly to the public administration’s databases to request the information contained therein.

In the Italian legal system, the defendant has two different ways to challenge an enforcement action: when the challenge entails the right to enforce the judgment or the validity of the singular acts of the enforcement proceedings.

Depending on the grounds of the challenge, the defendant may start the following proceedings.

1. Opposition to enforcement (Articles 615–616 of the CCP):

By this procedure, the opposing party challenges the creditor’s right to proceed with the enforcement.

In particular, the opposing party may challenge the creditor’s legal standing or its right to proceed with the enforcement as the judgment is contested (eg, when it is not enforceable or it has been paid off or modified after the formation of the judicial title).

2. Opposition to acts of enforcement (Articles 617–618 of the CCP):

Through this procedure, the opposing party may challenge the judgment’s formal validity, alleging faults of the judgment itself, or its notification, or flaws relating to individual acts of the enforcement proceedings.

The difference between the two types of opposition now mentioned concerns the object of the opposition: in fact, whereas the opposition to enforcement challenges the very basis of the right to proceed of the creditor, the opposition to the enforcement acts can be used to challenge any irregularities or non-compliances of the enforcement proceedings or the singular acts with legal provisions; to summarise, one aims to challenge the right to proceed, and the other one the way it is proceeding.

Secondly, the two types of opposition are subject to different deadlines.

In particular, the opposition to enforcement may be lodged at any time until the sale or the assignment of the attached assets has been ordered (unless it is based on facts that have arisen after such deadline, or the opposing party proves that it could not be lodged in time for reasons not attributable to him). On the contrary, the opposition to acts of enforcement must be lodged within the mandatory time limit of 20 days from: (i) the date of the service of the enforcement order or the writ of execution, if enforcement has not yet commenced, or (ii) the date of first act of enforcement if it has commenced.

It is also important to note that, in the presence of founded grounds and upon application of the opposing party, the court may grant an interim injunction to suspend the enforcement proceedings until judgment on the merits of the opposition (both to enforcement and to acts of enforcements).

As a rule, all judgments concerning obligations that can be enforced against the debtor’s assets, such as obligations to pay, obligations to do or refrain from doing something or obligations to deliver or return something, are enforceable from the first instance.

In the Italian law system, the basic rule is that any creditor with an enforceable judgment in respect of one of these obligations can obtain enforcement against the debtor’s property.

As already pointed out (see 2.1 Types of Domestic Judgments), this rule does not apply only to declaratory and constitutive judgments, which are not enforceable until they have become res iudicata, except for the part of the judgment concerning the costs of the proceedings. This rule is, to date, also confirmed by the consistent case law of the Italian Supreme Court.

Although, pursuant to Article 282 of the CCP a judgment is provisionally enforceable, as long as it is not res iudicata, and therefore is subject to appeal or to third-instance appeal (before the Corte di Cassazione) its provisional enforceability may be suspended, upon request of the appealing party, provided that the appeal appears to be, under a summary examination, grounded, and the recovery of the amounts paid in compliance with the judgment at the end of the appeal proceedings is at risk.

It is important to note that the Italian general law does not provide any specific statute of limitation for the recognition or enforcement of a judgment.

Therefore, according to general principles of law, the statute of limitation for recognition and/or enforcement is ten years from the moment the decision becomes res iudicata, pursuant to Articles 2934 and 2936 of the Italian Civil Code.

In the Italian legal system, there is no central system of all judgments.

Certainly important, though, especially in practice, are the numerous databases collecting judgments of both the Supreme Court and the Courts of Merit.

In any case, in the context of ongoing judgments, the sensitive data of the parties involved are not accessible to the public but are known only to the parties themselves and their lawyers, and so is the judgment itself.

Given the course of time and the progressive implementation of co-operation between states, Italy is party to many multilateral treaties, so the enforcement of foreign judgments does not require any particular formalities and is, in any case, fast and effective.

In fact, as a member of the European Union, Italy is subject to European regulations, in particular, Regulation (EU) No 1215/2012 (also known as the Brussels Regulation), on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This has updated Regulation (CE) 44/2001 and applies to legal proceedings instituted, authentic instruments formally drawn up or registered, and court settlements approved or concluded on or after 10 January 2015.

The Brussel Regulation states, in summary, that a judgment given in one member state shall be recognised in another member state without any special procedures being required.

Italy is also a party to the Lugano Convention of 30 October 2007 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Lugano Convention), concluded between the European Union and Denmark, Iceland, Norway and Switzerland, which provides for the recognition of judgments given in a contracting state without any special procedure.

Furthermore, the Hague Choice of Courts Convention concluded on 30 June 2005 (the Hague Convention) also provides that the recognition of the judgments given by the court of a contracting state designated in an exclusive choice of court clause may be refused only on the grounds specified by the Convention.

Last but not least, on 29 August 2022, the European Union (apart from Denmark) ratified the Hague Convention concluded on 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Convention 2019), which came into effect on 1 September 2023.

Besides the European Union, the Hague Convention 2019 has been ratified only by Ukraine, Uruguay, and the United Kingdom to date.

In the absence of any applicable convention, the Italian law of 31 May 1995, No 218 (the Italian Law on Private International law, ILPI) states that a judgment issued by a foreign court may be recognised and enforced within Italian territory, provided that the main criteria indicated by Article 64 are met (see 3.2 Variations in Approach to Enforcement of Foreign Judgments).

In Italy, the approach to enforcing a judgment may vary depending on the Convention that can be applied to the singular case.

In fact, considering the Brussels Regulation, the party interested in invoking a member state judgment shall only produce (i) a copy of the judgment which satisfies the conditions necessary to establish its authenticity and (ii) the certificate pursuant to Article 53, which is issued by the court of origin upon request of the interested party.

With regard to the Lugano Convention, a party seeking recognition or applying for a declaration of enforceability shall produce (i) a copy of the judgment which satisfies the conditions necessary to establish its authenticity and (ii) the certificate referred to in Article 54, which is issued by the Court of the State bound by the Lugano Convention where the judgment was issued upon request of the interested party.

Moreover, in relation to the Hague Convention, the party seeking enforcement of the judgment has to submit (i) the documents indicated in Article 13 of the Hague Convention 2005 and (ii) a certified translation of all documents.

If none of the aforementioned Conventions can be applied, the enforcement of a foreign judgment is subject to Articles 64 and 67 of law No 218/1995. The party interested in enforcing the decision in the Italian territory has to file a request before the Court of Appeal asking it to ascertain that the prerequisites for recognition set in Article 64 are met. Pursuant to Article 30 of legislative decree No 150/2011, the Court of Appeal of the place where the judgment shall be enforced has jurisdiction over the proceedings, which will follow the procedure of the summary judgment (ie, “procedimento semplificato di cognizione”) pursuant to Article 281 decies of the CCP.

In Italy, as a general rule, any foreign judgment can be enforced with a necessary clarification. If one of the Conventions described in 3.2 Variations in Approach to Enforcement of Foreign Judgments is applicable, any judgment can be automatically recognised upon the fulfilment of the formal conditions required by each Convention and without the need for further formalities.

When, on the contrary, no Convention is applicable, a judgment may nevertheless be automatically recognised and enforced in Italy upon fulfilment of the requirements listed in Article 64 of the ILPI, which are:

• the court that issued the judgment had to be competent to rule on the case in accordance with the principles of Italian law;
• the writ of summons was brought to the knowledge of the defendant in accordance with the law of the place where the proceedings took place, and the defendant’s fundamental rights of defence were not infringed;
• the parties were joined in the proceedings, or the default was declared in accordance with that law;
• it has become final in accordance with the law of the place where it was rendered;
• it is not in conflict with another final judgment given by an Italian court;
• it is not preceded by proceedings pending before an Italian court on the same grounds and between the same parties; and
• its provisions do not have effects contrary to public policy.

If Italy has ratified a convention on the enforcement of foreign judgments, enforcement shall be based on the convention. Instead, where a convention has not been implemented, enforcement is subject to the application of the ILPI.

Starting with international conventions:

1. Under EU Regulation No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, the party interested in enforcing a judgment rendered in another member state shall only provide a certified copy of the judgment, in addition to the certificate attached to the regulation under annex L, which is released by the court who issued the decision upon request of the interested party, without any particular procedure.

2. Pursuant to the Lugano Convention, dated 30 October 2007, executed between the European Union and Denmark, Iceland, Norway and Switzerland, a judgment issued by the court of a contracting state is recognised in the others without the need for additional procedures. Nonetheless, a judgment issued must be declared enforceable. To this end, the interested party shall provide a certified copy of the judgment, together with the certificate referred to in Article 54 of the Convention, which is released by the court which issued the decision upon request of the interested party.

3. Pursuant to the Hague Choice of Courts Convention of 2005, the party seeking to enforce a judgment must submit the documents listed by Article 13 of convention, along with an authentic translation, if necessary.

When none of the above indicated Conventions are applicable, reference has to be made to the ILPI, which grants foreign judgments recognition within the Italian territory with no specific procedures to be followed, provided that the prerequisites indicated in Article 64 are met (see 3.3 Categories of Foreign Judgments Not Enforced). Furthermore, pursuant to the ILPI the foreign judgment to be recognised must be res iudicata and must not contravene Italian public order.

In case the counterparty fails to comply with the judgment, Article 67 of the ILPI provides that the party interested in enforcing the decision must file a request to the competent Court of Appeal (namely, the one where the enforcement procedure shall be carried out) asking completion of a formal control concerning inclusion by the decision of all prerequisites listed in Article 64. Depending on the state where the judgment was issued, it must either be legalised or apostilled.

Once the foreign judgment is enforceable and its validity is not challenged, or a challenge has been dismissed, it may be enforced as a regular judgment. Refer to 2.2 Enforcement of Domestic Judgments.

Challenges that arise with respect to enforcing judgments under International Conventions can be classified as follows.

1. Under EU Regulation No 1215/2012, enforcement may be hindered in case:

• the judgment is contrary to Italian public policy;
• the defendant was not enabled to appear or defend itself before the court;
• the judgment is inconsistent with a judgment previously issued by an Italian court;
• the judgment is inconsistent with a prior judgment, issued by the courts of another member state, which meets the conditions for recognition; or
• the judgment violates the provisions on exclusive or special jurisdiction as outlined in the regulation.

2. Under the Lugano Convention, a judgment is declared enforceable upon request of the interested party if all the formalities provided by Article 53 are met, ie, that the party seeking recognition or a declaration of enforceability produces copy of the judgment which satisfies the conditions needed to establish its authenticity and a certificate issued by the court who issued the judgment in the forms provided by Articles 54 and 55 of the convention.

The party against whom the judgment is being enforced may appeal the decision on enforceability, claiming the lack of enforceability according to Articles 34 and 35 of the Lugano Convention, like, for instance:

• if enforcement is manifestly contrary to public policy of the state where recognition is sought;
• if there was a violation to the adversarial principle; or
• if it is irreconcilable with a judgment given in a dispute between the same parties in the state in which recognition is sought.

3. Under the Hague Convention 2005, enforcement is conditional upon the absence of the following:

• the choice of court agreement is invalid (unless an exception has already been dismissed by the court who issued the decision);
• one of the parties lacked the legal capacity to execute the choice of court clause, thus making it invalid;
• the writ of summons which commenced the proceeding was not duly served on the defendant, who was not granted a sufficient time to prepare an adequate defence, or, otherwise, it was served on the defendant in a manner incompatible with the Italian law principles in relation to the service of judicial deeds;
• the judgment was the result of fraud;
• the judgment was against Italian public order; or
• the judgment was incompatible with a previous definitive judgment issued in another member state, provided the latter complies with the requirements for enforcement in Italy.

In case a Convention is not applicable, the ILPI applies. According to Article 64, the recognition/enforcement of a judgment can be challenged in case any of the following requirements are not met:

• the judge who rendered the decision was rightly attributed jurisdiction and competence pursuant to the Italian Code of Civil Procedure;
• the judicial deed commencing the proceeding was duly served on the defendant, who had the time to prepare an adequate defence;
• the defendant was given the chance to appear in the proceedings in compliance with Italian procedural law;
• the judgment is definitive and cannot be appealed further;
• the judgment is not incompatible with a definitive judgment issued by an Italian court;
• a prior judgment on the same topic and between the same parties has been initiated in front of Italian courts; or
• the judgment is not contrary to the public order.

Legal issues concerning enforcement of arbitral awards, aside from those typical of enforcement proceedings, generally fall within two categories: those concerning the arbitration clause and those concerning the status of arbitrators. Starting with the arbitration clause, issues may concern its validity or application. Clauses deferring competence or jurisdiction to arbitration must be executed in writing and must contain the object of the dispute, the appointment of the arbitrator/s or indicate how arbitrators are to be appointed. Failure to comply with such mandatory requirements results in the arbitration clause being null and void. Whereas in relation to the application of the arbitration clause, issues may concern the field of competence effectively granted to the arbitrators or the fact that the award was issued on a non-arbitrable subject.

On the other hand, issues relating to the status of arbitrators concern violations of the duty to ensure an equal standing of the parties and impartiality/independence. In particular, case law of the Court of Cassation requires that a challenge to enforcement based on violations of the adversarial principle shall be based on arguments which outline the specific instances where the violation/s occurred. On the topic of impartiality, instead, the recent Cartabia reform to Article 815 of the CCP has added an open-ended provision to the otherwise restrictive list of reasons by which the impartiality of the arbitrators may be challenged. Indeed, paragraph 6bis of Article 815 of the CCP reads that parties may challenge an arbitrator if “there are other serious reasons of convenience, such as to affect the independence or impartiality of the arbitrator”. While it is still too early to determine what courts will consider to be “other serious reasons”, such wording recalls the case law of the European Court of Human Rights, according to which the appearance of objectively justified doubts on the arbitrator’s independence (such as economic ties between the arbitrator and one of the parties) is sufficient for ruling an absence of impartiality.

How the award becomes enforceable will be explained in detail later in 4. Arbitral Awards. For the time being, it is best to anticipate that the issues that may arise from the enforcement process depend on whether the award was rendered in an Italian or international arbitration. Moreover, a further distinction shall be drawn on the notions of “arbitrato rituale” and “arbitrato irrituale”, which entails another set of differences in enforceability, which will be explained infra (ie, later).

Under Italian laws, enforcement proceedings may vary according to the type of arbitral award being enforced.

There are two main distinctions according to Italian procedural law that concern awards’ enforcement. The first distinction is that between national and international arbitration. The second, within national arbitration, is between arbitrato rituale (literally, “ritual”) and arbitrato irrituale (ie, “not ritual”).

Starting with the first distinction, national awards, to be enforced, require a declaration of enforceability, for which the parties may apply to the court which holds competence over the geographical area where the arbitration was seated. The court then issues (or denies) the declaration of enforceability.

Such declaration may be challenged in front of the Court of Appeals.

International awards, on the contrary, must be subjected to a specific procedure, which shall be explained in more detail infra. In general, the party seeking enforcement files the award and the arbitration clause (along with an authentic translation, if needed) to the competent Court of Appeals. The Court then assesses the formal validity of the award and provides (or denies) the declaration of enforceability by decree. The release of the decree on enforceability may be denied if: (i) the controversy could not have been subjected to an arbitral convention under Italian law; or (ii) the decision contained in the award is contrary to the public order.

Turning to the second distinction, national arbitration may either be, as indicated above, “rituale” or “irrituale”. An arbitration “rituale” originates from an arbitration clause, by which the parties agree to refer any dispute which may arise between them to arbitration.

An “irrituale” arbitration, instead, is a contract by which the parties appoint the arbitrators with a view of reaching a settlement agreement.

It is no coincidence that “irrituale” in Italian means irregular, since in an “irrituale” arbitration, the parties do not wish to engage in conflict but reach an amicable settlement of their opposed interests. To summarise: whereas at the end of a rituale arbitration the arbitrators issue a decision comparable to a judgment issued by a court, the decision of the arbitrators at the end of an irrituale arbitration has only contractual effects between the parties.

Such substantial difference reflects also on the enforceability of the two different types of awards: an award rendered in a rituale arbitration is enforceable on the same basis as a judicial decision (see 2.2 Enforcement of Domestic Judgments), once it has been declared enforceable by the competent court (see 3.4 Process of Enforcing Foreign Judgments), whereas the decision reached through an irrituale arbitration has the effectiveness of a contract and will need to be enforced, in the event the performance has not been duly fulfilled. Whether one party failed to provide due performance shall be decided at the end of judicial proceedings, as it is the case for any other contract.

There are three types of issues which prevent an arbitral award from being declared enforceable: (i) failure to comply with the formal requirements laid out by the law; (ii) the fact that the arbitration was based on a non-arbitrable issue; or (iii) the award is contrary to the public order.

Firstly, arbitral awards shall be declared enforceable if they comply with the formal requirements laid down by law, meaning the following documents must be filed: the award and the arbitration agreement, both either in the original or by certified authentic copy. If the documents are rendered in a language other than Italian, they should be translated, and the translation shall be provided a certification of conformity.

Secondly, the arbitration agreement must concern an arbitrable matter. The matters considered to be arbitrable are cause for great debate in legal scholarship. Pursuant to Italian law, arbitrable matters include individual rights such as that of receiving due performance of contractual obligations. Generally, rights which involve a public interest (eg, family disputes or criminal proceedings) are usually considered not arbitrable.

Finally, the award must not violate the public order, meaning that it should not damage the fundamental principles of the Italian legal system.

Awards rendered through an irrituale arbitration shall be enforced through a regular court procedure, as failure to comply with the agreement is an issue of defective performance of contractual obligations.

Meanwhile, awards rendered in a rituale arbitration, once granted enforceability by the competent court, shall be enforced as a court’s judgment, in the ways examined in 2.2 Enforcement of Domestic Judgments. Indeed, the request for enforceability is filed to the competent court (ie, the one where the arbitration was seated), along with the arbitration clause. The court, after assessing the formal validity of the award, declares the award enforceable by decree. In case any formal requirements are not fulfilled, if the issue decided by the award was not arbitrable, and if the award is contrary to Italian public order principles, the court rules against enforceability. The court’s decree, whatever its outcome, may be challenged, as will be examined in 4.6 Challenging Enforcement of Arbitral Awards.

Recognition of international awards, instead, is regulated according to a discipline derived from the Lugano Convention of 1988 and the New York Convention of 1958. Indeed, Articles 839 and 840 of the CCP, provide that the individual seeking to enforce an international award in Italy shall resort to the president of the Court of Appeals where the counterparty resides. If the counterparty resides outside of Italy, the competent Court of Appeals shall be that of Rome. After the interested party files the award and the arbitration clause (along with an authentic translation, if needed), the Court of Appeals assesses the formal validity of the award and provides (or denies) the declaration of enforceability by decree. The release of a decree on enforceability may be denied if: (i) the controversy could not have been subjected to an arbitral convention under Italian laws; or (ii) the decision contained in the award is contrary to the public order. The decree conceding or denying enforceability may be challenged within 30 days in front of the same Court of Appeals. If a challenge is submitted, the procedure shall then continue in the form applicable to ordinary judgments. If the conditions outlined under Article 649 of the CCP are met (ie, opposition is not based on written evidence or may otherwise be resolved rapidly), the Court of Appeals may grant the award with provisional enforceability, pending the outcome of the judgment. A decision issued at the end of the opposition judgment may be challenged in front of the Court of Cassation (ie, the Italian Supreme Court for civil and criminal proceedings). If a challenge is not submitted, the award becomes enforceable in the same way a judgment is.

Once the award is declared enforceable with a final judgment, its enforcement proceedings follow the same rules outlined in 2.2 Enforcement of Domestic Judgments.

Once arbitral awards are enforceable and are not challenged, or a challenge has been dismissed, they are enforced as if they were a regular judgment. Therefore, refer to 2.2 Enforcement of Domestic Judgments.

In addition to the challenge to the enforcement of international awards, outlined in 4.4 Process of Enforcing Arbitral Awards, national awards may be challenged depending on whether they result from an arbitration which is rituale or irrituale. The latter may be challenged on the same basis of any other contract. Therefore, a party may seek its annulment (in the cases provided by Article 808 ter of the Italian Code of Civil Procedure) or for it to be voided pursuant to the provisions of the Italian Civil Code. An award rendered in a rituale arbitration, instead, may be challenged in two ways. Firstly, as already anticipated, the decree granting (or denying) enforceability to the award may be challenged in front of the competent Court of Appeals within 30 days since the decree is notified to the interested party. The Court of Appeals, after having heard from the interested parties, rules on the challenge by ordinance. Whether the decision may be appealed in front of the Court of Cassation is controversial, as some judgments have ruled against this possibility in recent years.

Secondly, the award, irrespective of whether it is filed or not, may be appealed, opposed by a third party or revoked. An appeal may be based on two distinct possibilities: (i) the award is null and void (Article 829 of the Italian Code of Civil Procedure), or (ii) it is rendered in violation of the law. In addition, arbitral awards may be subjected to revocation or opposition by a third party. In the first case, the award may be revoked if:

• the award is the result of the bad will of one party against the other;
• the losing party has gained knowledge that the evidence supporting the award was falsified;
• decisive evidence has emerged after the award was rendered; or
• the arbitrators have rendered the award in bad will. With respect to third-parties’ oppositions, instead, when an award has become enforceable and detriments the rights of third parties whom have not been parties to the arbitration, these may file an opposition, which shall be conducted according to the rules applicable to an ordinary procedure in front of the Court of Appeals.