To identify the asset position of a potential debtor, the creditor may resort to publicly available information, including via the following channels.
Under Italian law, decisions rendered as a result of ordinary proceedings differ according to the nature of the determination made by the court and the subject matter of the ruling. Specifically, judgments are divided into:
All the aforementioned decisions are subject to appeal and, under certain conditions, they may also be challenged before the Italian Supreme Court.
If the decision is no longer subject to any of the ordinary appeals listed in Article 324 of the CCP – either because the parties exhausted the appeals available or because they failed to activate them within the relevant time limits – such decision will acquire res judicata effect, thus becoming final and binding for the parties, their heirs and successors in title.
As a general rule, sentenze di condanna are immediately enforceable, even if they are still subject to or have already been appealed and are therefore not yet final and binding. Conversely, both sentenze di mero accertamento and sentenze costitutive may be enforced only insofar as they acquired res judicata effect.
On a different note, decisions also differ depending on whether:
Italian law also allows the court to issue ‒ before reaching the final stage of the proceedings ‒ measures that can anticipate, to some extent, the effects of the decision on the merits. These are, specifically:
Such orders, albeit subject to possible revocation by virtue of the judgment, are immediately enforceable (if so expressly declared, in cases under Article 186-ter of the CCP).
It is worth mentioning that the recent reform of Italian procedural rules introduced additional measures aimed at deflating litigation and speeding up the settlement of proceedings, allowing the court to issue orders granting (Article 183-ter of the CCP) or rejecting (Article 183-quater of the CCP) the claim if – in the course of the trial (typically, but not exclusively, following the first hearing) ‒ it becomes apparent that either the facts constituting the claim are proven and the defences of the other party appear to be manifestly unfounded (Article 183-ter of the CCP) or the claim is blatantly ungrounded (Article 183-quater of the CCP).
In both cases, the order issued by the court – albeit being provisionally enforceable (insofar as it upholds the claim) – is subject to appeal (under Article 669-terdecies of the CCP). In any case, the order does not acquire res judicata effect and may not be invoked as being final and binding in other proceedings.
Finally, Italian law envisages additional measures that may be enforceable, such as:
In order to initiate enforcement, the creditor must obtain and serve on the debtor an enforcement title (ie, an enforceable decision of a court, or other specific documents such as certain deeds received by a notary public, bills of exchange, or certain other securities) granting a right that is certain, liquid, and not subject to an unexpired term.
Furthermore, the creditor must serve a writ of enforcement (atto di precetto) to the debtor, thereby formally requesting that the latter fulfil its obligations established by the enforcement title (to be identified in their exact amount) within a period of no longer than ten days and warning the debtor that failure to do so shall result in commencement of enforcement.
Enforcement Procedure
Should the debtor fail to perform its obligations within the aforementioned term, the creditor is entitled to commence enforcement through a writ of attachment (atto di pignoramento), which is to be served to the debtor by the competent bailiff. Once the debtor receives service of such writ of attachment, the assets identified therein are seized and the debtor is deprived of the right to dispose of them (although the debtor may still be entitled to retain possession thereof).
The content of the writ of attachment and the subsequent procedure differ according to the type of assets seized.
Enforcement over movable assets
Enforcement over movable assets is executed by searching for assets either through the bailiff’s access to the debtor’s residence and other premises belonging to the latter (including for professional purposes) or through a search of the debtor’s person.
In choosing the assets to seize, the bailiff should identify assets that are easier to sell (hence preferring cash, valuables, and securities), up to a value equal to the amount of the claim increased by 50% (in order to cover interests and legal fees as well). The bailiff may request assistance from an expert to assess the value of the assets, with a view to issuing an attachment report. Assets are either transported to a public storage facility or left with the debtor; a custodian is appointed (usually other than the debtor, unless the creditor so agrees).
Assets seized are then sold and the proceeds are placed to the satisfaction of creditors (and the costs of the enforcement proceedings).
Enforcement over immovable assets
In order to seize immovable assets, careful inspection of the Public Register of Immovable Property (Conservatoria dei Registri Immobiliari) is required to specifically identify the property and possible existence of mortgages, liens, or third-party rights on the assets.
Enforcement is then executed through service of the writ of attachment and its subsequent transcription in the aforementioned public register – following which, the creditor submits its petition for sale of the property. After having verified the completeness of all the service procedures and formal requirements, the court orders the sale, and the base sale price is set.
This type of enforcement usually guarantees that the credit is recovered (in whole or in part, depending on the amount due and the price obtained following sale of the real estate). However, it is subject to relevant costs (including tax duties and the fees of the professionals involved) and requires an extensive procedure (possibly lasting up to several years).
Enforcement over third-party claims
Creditors resort to this procedure in order to expropriate claims that the debtor has against third parties, typically including banks, employers, and social security institutions (provided that claims for salaries and social security wages can be seized only up to one-fifth of the monthly amount owed to the debtor).
By virtue of the writ of attachment, which is to be served to the debtor and the third party, the creditor must identify the third party but need not specifically indicate the debtor’s accounts or the amounts owed. It will be up to the third party – within ten days of receipt of the writ of attachment – to notify the creditor in writing of what sums are owed to the debtor and when payment is due, as well as of the existence of any other pending seizures or attachments over those assets. On the basis of this information, the creditor is thus enabled to assess whether or not it is worth proceeding, and the procedure for assigning the third-party claim in favour of the creditor is usually somewhat expedited.
Costs
Enforcement costs are established on the basis of the value of the claim, to which legal fees, the court’s fees, and other professionals involved (ie, custodians, experts, notaries, etc) are parameterised. Therefore, enforcement costs vary significantly depending on the type of attachment that the creditor chooses.
Attachments over movable assets usually entail low costs, unless higher expenses are required owing to the peculiar nature of the property subject to custody. Similarly, attachments against third-party claims also imply low costs. In contrast, enforcement against immovable properties leads to substantial costs, as they include not only taxes and duties but also fees owed to several professionals (experts, custodians, and the notary involved in the sale of the real estate).
Time
The duration of enforcement proceedings depends on several circumstances, including the type of attachments chosen and the timeframe required to complete the sales operations.
As a general remark, enforcement of third-party claims is undoubtedly faster and more efficient, and it may be completed within some months. In contrast, enforcement against immovable property may result in quite complex and time-consuming activities, which may last from two to five years.
Besides resorting to the sources already mentioned (see 1.1 Options to Identify Another Party’s Asset Position), Italian law provides a specific procedure that may be activated by a creditor following the service of both the enforcement title and the writ of enforcement. Indeed, Article 492-bis of the CCP allows the creditor to request that the bailiff of the debtor’s place of residence gain telematic access to public administration databases (including, in particular, the tax registry, the archive of financial reports, and the databases of social security institutions) in order to obtain information about assets that may be subject to attachment – for example, information about relationships with banks and employers. If the search is successful, the bailiff directly proceeds with the formalities required to execute the writ of attachment of the identified property (atto di pignoramento).
Italian law provides two different procedures to challenge enforcement of judgments.
Opposition to Enforcement (Article 615 of the CCP)
Through this procedure, the debtor disputes the creditor’s right to proceed with enforcement. By way of example, the debtor may hold that the enforcement title is invalid or unenforceable, the obligation set in the title has already been fulfilled or is extinct, or the assets seized are exempted from attachment.
This opposition is inadmissible if it is lodged after issuance of the order authorising the sale or the assignment of the seized assets.
Opposition to Acts of Enforcement (Article 617 of the CCP)
With this procedure, the debtor disputes:
The court seised with the challenge to enforcement (either under Article 615 of the CCP or under Article 617 of the CCP) may suspend the enforceability of the decision or enforcement itself, on the grounds of serious reasons.
As mentioned in 2.1 Types of Domestic Judgments, sentenze di condanna are immediately enforceable, even if they are still subject to or have already been appealed. Conversely, both sentenze di mero accertamento and sentenze costitutive may be enforced only insofar as they acquired res judicata effect. Even for sentenze di condanna, however, enforcement may be precluded in cases where a stay of provisional enforcement is ordered.
Indeed, the court competent for the appeal and the Supreme Court can suspend provisional enforceability of the decision ‒ at the request of the debtor, with or without the imposition of a security ‒ if the appeal appears to be manifestly well-founded or if enforcement could result in serious and irreparable harm (even where the judgment concerns a sum of money), including in relation to the possibility of insolvency of one of the parties.
Furthermore, as mentioned in 2.5 Challenging Enforcement of Domestic Judgments, enforcement may also be suspended by the court seised with opposition to enforcement or opposition to acts of enforcement.
On a different note, it is worth mentioning that ‒ under Italian law ‒ the limitation period for enforcement of judgments is established as ten years from the date on which the decision becomes res judicata.
In Italy, there is no general central register providing a record of all judgments. In order to assess the content of case law, legal professionals may therefore resort to various legal databases – mostly available through a subscription ‒ that include text of decisions issued by the Italian Supreme Court and (some, but not all) lower courts. Alternatively, an interested party may request a copy of a specific court decision from the clerk of the issuing court.
As a general rule, the texts of the decisions are anonymised in advance. This is so that the data of the parties (or other sensitive or confidential information that may be mentioned in the decision) is removed in order to protect the right to privacy of those involved.
The rules governing the recognition and enforcement of foreign judgments in Italy depend on whether the foreign judgment has been rendered in an EU member state or a non-EU country.
EU Member States’ Judgments
If the foreign judgment has been rendered in an EU member state, recognition and enforcement of that judgment is governed by EU law. The applicable EU regulation varies depending on the subject matter concerned.
Key EU regulations governing recognition and enforcement of judgments are:
As a general principle, EU member state judgments are automatically recognised (ie, without any specific procedure being required) and directly enforced (ie, without any exequatur being needed) in Italy. This is so because, under the above regulations, EU member states’ judgments benefit from a mutual recognition and enforcement regime ‒ under which, the judgment rendered in a particular member state automatically produces effects and is directly enforceable in the other member states.
Non-EU Countries’ Judgments
If the foreign judgment has been rendered in a non-EU country, the relevant rules are provided by bilateral or multilateral treaties, including:
In the absence of a treaty, the recognition and enforcement of non-EU countries’ judgments is governed by Italian Law No 218 of 31 May 1995 (the “Italian Private International Law Act”). Pursuant to Article 64 of the Italian Private International Law Act, the decision of a non-EU country’s court is automatically recognised in Italy only if the following conditions are met:
Articles 65 and 66 of the Italian Private International Law Act govern the recognition of judgments relating to personal status, capacity, familiar relationships and personal rights, as well as the recognition of courts’ decisions rendered in non-adversarial proceedings. Under these provisions, foreign judgments are recognised in Italy if they have been rendered by jurisdictional authorities of – or produce effects in ‒ the country whose law is applicable according to the conflict of law rules established by the Italian Private International Law Act itself.
Article 67 of the Italian Private International Law Act, governing enforcement, provides that any interested party can apply to the judicial authority to obtain a decision declaring that the requirements for recognition are met.
As mentioned in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments, a different recognition/enforcement regime applies depending on whether the foreign judgment is rendered in an EU member state or in a non-EU country.
With regard to EU member state judgments in civil and commercial matters, the regime established by the Brussels I bis Regulation is identical, irrespective of the type of judgment concerned. This is so because the definition of “judgment” provided for in Article 2 of the Brussels I bis Regulation is comprehensive, including any judgment given by a court or a tribunal of an EU member state ‒ whatever the judgment may be called (eg, a decree, order, decision, or writ of execution) – as well as a decision on the determination of costs or expenses by an officer of the court. Article 2 of the Brussels I bis Regulation further specifies that the definition of “judgment” also includes provisional measures ordered by a court or tribunal that, by virtue of the Brussels I bis Regulation itself, has jurisdiction as to the substance of the matter. Conversely, it does not include a provisional measure ordered by such court or tribunal without the defendant being summoned, unless the judgment containing the measure is served on the defendant prior to enforcement.
Therefore, the recognition and enforcement regime established by the Brussels I bis Regulation applies to all types of judgments except provisional measures either:
The recognition and enforcement of these measures in Italy are thus regulated by the Italian Private International Law Act.
As mentioned in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments (Non-EU Countries’ Judgments), the Italian Private International Law Act provides for different rules on recognition depending on whether the judgment in question qualifies as a court’s decision rendered in an adversarial proceeding (Article 64), a court’s decision rendered in a non-adversarial proceeding (Article 66), or a judgment relating to personal status, capacity, familiar relationships and personal rights (Article 65). Irrespective of the type of judgment, enforcement is governed by Article 67 of the Italian Private International Law Act – according to which, in the event of non-voluntary compliance with a judgment or opposition thereto, any interested party may apply to the judicial authority to obtain a decision to ascertain whether the requirements for recognition are met.
Article 32 of the Lugano Convention provides for a definition of “judgment” that essentially mirrors the one provided for in the Brussels I bis Regulation and thus includes any judgment rendered by a court or tribunal of a signatory state – whatever the judgment may be called (eg, a decree, order, decision, or writ of execution) – as well as the determination of costs or expenses by an officer of the court.
Article 3 of the 2019 Hague Convention defines a “judgment” as any decision on the merits given by a court – whatever that decision may be called (eg, a decree or order) – and a determination of costs or expenses of the proceedings by the court, provided that the determination relates to a decision on the merits eligible for recognition under the 2019 Hague Convention. It also specifies that interim measures of protections are not judgments and therefore are not subject to the recognition and enforcement regime established by the 2019 Hague Convention.
Judgments Not Eligible for Recognition and Enforcement Under Brussels I bis Regulation
With regard to civil and commercial matters, recognition and enforcement of judgments rendered in EU member states may be refused upon application of an interested party only on specific and limited grounds. Specifically, pursuant to Articles 45 and 46 of the Brussels I bis Regulation, recognition and enforcement of foreign judgments may be refused if:
Judgments Rendered in Non-EU Countries
Judgments not eligible for recognition and enforcement under Lugano Convention
Pursuant to Articles 34 of the Lugano Convention, a judgment will not be recognised in Italy if:
As to the enforcement, pursuant to Article 38 of the Lugano Convention, a judgment given in a signatory state may be enforced in Italy only if it has been declared enforceable in the state of origin.
Judgments not eligible for recognition and enforcement under 2019 Hague Convention
A judgment rendered in a contracting state is eligible for recognition and enforcement in Italy only if the requirements provided for under Articles 5 or 6 of the 2019 Hague Convention are met. Additionally, pursuant to Article 7, recognition and enforcement in Italy may be refused if:
Judgments not eligible for recognition and enforcement under Italian Private International Law Act
As mentioned in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments (Non-EU Countries’ Judgments), under the Italian Private International Law Act, non-EU country judgments are recognised and enforced in Italy only if the conditions established by Articles 64, 65 and 66 of the Italian Private International Law Act are met.
As mentioned in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments, the procedure for the recognition and enforcement of foreign judgments in Italy varies depending on whether the judgment has been rendered in an EU member state or in a non-EU country.
Process of Enforcing an EU Member State Judgment
As mentioned in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments (EU Member States’ Judgments), EU member state judgments benefit from a mutual recognition and enforcement regime ‒ ie, they are automatically recognised and directly enforced in Italy without any specific procedure being needed.
That said, with regard to judgments in civil and commercial matters, Article 36(2) of the Brussels I bis Regulation allows any interested party to apply for a decision that there are no grounds for refusal of recognition. In this case, the application must be presented before the competent Italian court of first instance, together with a copy of the judgment and ‒ where necessary ‒ a translation thereof.
In addition to the foregoing, Article 37 of the Brussels I bis Regulation establishes that a party who wishes to invoke in Italy a judgment rendered in another EU member state must produce:
Also in this case, the application must be presented before the Italian competent court of first instance.
The court’s assessment is merely formal, meaning that the seised court cannot review the merits of the foreign judgment.
As to the enforcement, pursuant to Article 42 of the Brussels I bis Regulation, the applicant must provide:
Pursuant to Article 43 of the Brussels I bis Regulation, the above-mentioned certificate must be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate must be accompanied by the judgment, if not already served on that person.
Once a judgment has been declared enforceable, pursuant to Article 41 of the Brussels I bis Regulation, the relevant enforcement procedure is that established under Italian law for the enforcement of national judgments. Reference is thus made to 2.2 Enforcement of Domestic Judgments.
Process of Enforcing a Non-EU Country Judgment
Lugano Convention
As with the Brussels I bis Regulation, the Lugano Convention also provides for the automatic recognition and direct enforcement in Italy of the judgment rendered in another signatory country of the Lugano Convention and provides for specific and limited grounds on which recognition can be refused.
That said, some formalities must also be complied with under the Lugano Convention. Specifically, pursuant to Article 33(2) of the Lugano Convention, any interested party who raises the recognition of a judgment as the principal issue in a dispute may apply for a decision that the judgment be recognised.
Pursuant to Article 53 of the Lugano Convention, the applications for recognition of a foreign judgment or for a declaration of enforceability must be presented before the Italian competent court of appeal, together with:
Also in this case, the seised court merely verifies whether the formal criteria are met. It does not review the merits of the judgment.
2019 Hague Convention
Similarly, as mentioned in 3.3 Categories of Foreign Judgments Not Enforced (Judgments Rendered in Non-EU Countries), under the 2019 Hague Convention, a judgment given by a court of a contracting state will be recognised and enforced in Italy only if it has effect and is enforceable in the state of origin. Nonetheless, also in this case, certain formalities are needed. Specifically, pursuant to Article 12 of the 2019 Hague Convention, a party seeking recognition or applying for enforcement must produce a complete and certified copy of the judgment, as well as any documents necessary to establish that the judgment has effect or is enforceable in the state of origin.
Pursuant to Article 13 of the 2019 Hague Convention, the procedure for recognition, declaration of enforceability, or registration of enforcement is governed by Italian procedural law unless the 2019 Hague Convention itself provides otherwise.
Italian Private International Law Act
As mentioned in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments (Non-EU Countries’ Judgments), recognition in Italy of foreign judgments under the Italian Private International Law Act is automatic, provided that the requirements listed in Article 64 of the Italian Private International Law Act are met.
Pursuant to Article 67 of the Italian Private International Law Act, the procedure governing the recognition and enforcement (as well as the opposition to the recognition) of non-EU countries’ judgments is that established by Italian Legislative Decree No 150/2011. The latter provides that the competent court is the court of appeal of the place where the judgment will be enforced and that the applicable procedural rules are those relating to the summary judgment (procedimento semplificato di cognizione), provided for by Article 281-decies of the CCP.
Enforcing a foreign judgment in Italy can be relatively straightforward or more complex, depending on where the judgment originates (EU versus non-EU), the subject matter, and whether the opposing party challenges the process.
The main cost heads are:
The conditions under which the recognition and enforcement of a foreign judgment may be refused, as well as the procedure applicable in the event of an appeal of the decision on recognition or enforceability, vary depending on whether the foreign judgment was rendered in an EU member state or in a non-EU country.
Challenge of EU Member States’ Judgments Under Brussels I bis Regulation
As mentioned in 3.3 Categories of Foreign Judgments Not Enforced (Judgments Not Eligible for Recognition and Enforcement Under Brussels I bis Regulation), the conditions under which recognition and enforcement of a foreign judgment may be refused are listed in Articles 45 and 46 of the Brussels I bis Regulation.
Pursuant to Article 47 of the Brussels I bis Regulation, the application for refusal of enforcement must be submitted to the competent Italian court of first instance. The applicant must provide the court with a copy of the judgment and, where necessary, a translation thereof. Insofar as it is not covered by the Brussels I bis Regulation, the procedure for refusal of enforcement is governed by Italian law – namely, by the provisions regulating the summary judgment (procedimento semplificato di cognizione) (ie, Article 281-decies of the CCP).
Both the decision on the application for refusal of enforcement and the decision declaring that no grounds for refusal exist (Article 36 of the Brussels I bis Regulation) may be appealed by either party.
The appeal is to be lodged with the competent Italian court of appeal. The decision of the latter may be contested by an appeal before the Italian Corte di Cassazione (Articles 49 and 50 of the Brussels I bis Regulation).
Challenge of Non-EU Countries’ Judgments Under Lugano Convention
Pursuant to Article 43 of the Lugano Convention, the decision on the application for a declaration of enforceability may be appealed by either party within one month of service thereof for lack of enforceability pursuant to Articles 34 and 35 of the Lugano Cnvention. The appeal is to be lodged with the competent Italian court of appeal and the appeal will be dealt with in accordance with Italian rules of civil procedure. The decision on the appeal can be appealed before the Italian Corte di Cassazione.
Challenge of Non-EU Countries’ Judgments Under Italian Private International Law Act
As mentioned in 3.2 Variations in Approach to Enforcement of Foreign Judgments, pursuant to Article 67 of the Italian Private International Law Act, in the event of non-voluntary compliance with a judgment or opposition thereto, any interested party may apply to the judicial authority to obtain a decision to ascertain whether the requirements for recognition are met. That decision may be appealed by any interested party pursuant to Italian procedural rules.
As described in greater detail in 4.2 Variations in Approach to Enforcement of Arbitral Awards, the legal framework for the enforcement of arbitral awards ‒ including the relevant procedure ‒ varies depending on whether the award to be enforced is domestic or foreign.
Jurisdiction for enforcement is not based on the location of the award debtor’s assets. With regard to domestic awards, the competent court for exequatur proceedings is the court of first instance (tribunale) at the seat of arbitration. As regards foreign awards, the competent court for recognition and enforcement is the court of appeal (corte d’appello) of the place of the defendant’s domicile. If a defendant is not domiciled in Italy, the Rome Court of Appeal will have jurisdiction.
It should be noted that, once an award has obtained the exequatur, the enforcement proceedings on the debtor’s assets are subject to a different set of rules governing enforcement in general (Articles 474 et seq of the CCP). Under this framework, the jurisdiction to oversee enforcement and to decide on oppositions thereto – if any ‒ is vested, as a rule, in the court of the place where the assets are located.
As anticipated, different sets of rules apply to the enforcement of domestic and foreign awards.
Domestic Awards
The enforcement of domestic awards is governed by the CCP. Article 824-bis of the CCP provides that, as of the date of the last signature, a domestic award displays the same effects of a court judgment. Under Article 825 of the CCP, enforcement on the award debtor’s assets requires the prior filing by the winning party of an exequatur request with the court at the seat of arbitration.
Foreign Awards
The recognition and enforcement of foreign awards is governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the “New York Convention”) – which Italy ratified on 19 January 1968 – and supplemented by the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 and, with regard to procedural aspects, Articles 839 and 840 of the CCP. Since Italy did not make any of the reservations allowed by Article I(3) thereof, the New York Convention also governs the recognition of awards dealing with non-commercial matters and awards made in the territory of a non-contracting state.
As the New York Convention was directly incorporated in the Italian legal system by means of an execution order (ordine esecutivo), it applies directly in lieu of Articles 839 and 840 of the CCP, which remain applicable only for matters falling outside the scope of the New York Convention or when providing rules that are “more favourable” to the recognition and enforcement of a foreign award within the meaning of Article VII of the New York Convention.
Recognition of Foreign Awards
An award that settles a dispute may be recognised and enforced regardless of whether it is partial (ie, it rules on some of the disputed issues through a final decision without exhausting the subject matter of the dispute) or final. Notably, an interim award that rules on preliminary procedural issues without settling the dispute ‒ even in part (such as an award upholding the jurisdiction of the arbitral tribunal) ‒ can also be recognised under the New York Convention independently of recognition of the final award.
Enforcement of Domestic and Foreign Awards
As to enforcement, a distinction must be made between declaratory or constitutive awards and condemnatory awards. Even though all types of domestic awards display the same effects as a court judgment, irrespective of the granting of exequatur, only awards with a condemnatory operative part may be enforced, entered in public registries, or invoked to obtain a court-ordered mortgage on the award debtor’s immovable property. The same applies to foreign awards, with declaratory or constitutive foreign awards being recognisable but not enforceable.
Domestic Awards
Pursuant to Article 825 of the CCP, the winning party that intends to enforce the award must file a request with the court at the seat of arbitration for granting exequatur. The request must be accompanied by the original or a certified copy of the award and the original or a certified copy of the arbitration agreement. In the context of these proceedings, the court reviews only the formal validity of the award.
The enforcement of domestic awards is subject to the ten-year “ordinary” statute of limitations under Article 2946 of the Italian Civil Code.
Foreign Awards
The procedure for the recognition and enforcement in Italy of foreign arbitral awards consists of two phases: an ex parte phase and a potential adversarial opposition phase.
In the first phase, the party seeking recognition in Italy of the foreign award applies to the competent court of appeal, which examines ex officio the formal regularity of the award and ascertains if any of the grounds listed in Article V(2) of the New York Convention prevent recognition. The request (ricorso) must be addressed to the president of the court of appeal of the district of the domicile, or registered office, of the award debtor. It must also be accompanied by either the original or a true copy (copia conforme) of the award and arbitration agreement and, if these documents are drafted in a language other than Italian, by a certified translation. The ex parte phase ends with the president of the court of appeal issuing a decree whereby they either declare the award immediately enforceable or dismiss the application (Article 839 of the CCP).
In the second phase, any interested party may challenge the aforementioned decree before the court of appeal acting as a panel.
Pursuant to Article 840(3) of the CCP, in the ensuing adversarial phase, the competent court will deny recognition and enforcement of the foreign award if the award debtor proves any of the five grounds listed in Article V(1) of the New York Convention and restated in Article 840(3) of the CCP – namely:
Moreover, under Article 840(5) of the CCP, recognition and enforcement may also be denied ex officio if the court finds that either of the two grounds for non-recognition set out in Article V(2) of the New York Convention apply ‒ namely:
In this last respect, public policy is to be construed narrowly by reference to international public policy (rather than the broader concept of domestic public policy). It follows that foreign awards will be refused recognition in Italy on public policy grounds only if they are at loggerheads with the fundamental values enshrined in the Italian Constitution.
Lacking any specific statute of limitations, it is generally held that foreign awards may be recognised and enforced in Italy within the ordinary ten-year statute of limitations under Article 2946 of the Italian Civil Code.
The court fees for the filing of the application for the enforcement of a domestic award or the recognition and enforcement of a foreign arbitral award consist of a fee of EUR98 (contributo unificato) and stamp duty amounting to EUR27. The recognised award is, however, subject to a registration tax (at a rate of either 1% or 3% depending on the type of relief awarded).
The proceedings for granting exequatur to a domestic award as well as the ex parte phase for the recognition and enforcement of a foreign award are both quite swift, in that they may last less than a month. On the other hand, the potential adversarial phase of the recognition and enforcement of foreign awards may take up to one year or more.
Domestic Awards
The losing party may challenge the award before the court of appeal at the seat of the arbitration under Articles 828 and 829 of the CCP. Parties to the arbitration cannot waive ex ante the right to request the setting aside of the award.
In line with most advanced arbitration laws, Italian law provides narrow grounds for set-aside. Article 829(1) of the CCP lists 12 procedural violations that warrant the setting aside of an award ‒ namely:
Awards may be challenged for errors in law only if the parties expressly provided so or when contemplated by law (as for corporate and labour law disputes). Lastly, awards may be set aside for breach of Italian public policy pursuant to Article 829(3) of the CCP.
Foreign Awards
The grounds under which a foreign award may be refused recognition are those set forth by the New York Convention. As a general rule, awards set aside by the courts at the seat cannot be enforced in Italy pursuant to Article V(1)(e) of the New York Convention and Article 840(3)(5) of the CCP.
It has, however, been argued that an award set aside at the seat of the arbitration could nonetheless be recognised and enforced in Italy if the foreign judgment setting aside the award could not itself be recognised in Italy under one (or more) of the grounds set forth by Article 64 of the Italian Private International Law Act.
Another debated point is whether decisions recognising a foreign award are affected by the subsequent setting aside of the award at the seat. The prevailing view is that, even though the judgment granting exequatur would not be affected per se and would continue to display res judicata effects, the annulment of the award could be invoked at the enforcement stage under Article 615 of the CCP as a ground to resist enforcement on the debtor’s assets.
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