This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Italy.

2. Date of entry into force of the New York Convention

1 May 1969 (Law No. 62 of 19 Jan. 1968).

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

No.

(b) commercial relationships

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Under Italian law, the national provisions on arbitration contained in the Civil Procedure Code, as opposed to the New York Convention, apply to arbitration proceedings and to awards resulting therefrom only when the place of arbitration (sede dell'arbitrato) is located in Italy. Therefore, all arbitration procedures and awards are considered 'domestic' if Italy is the place of arbitration. On the contrary, an award deliberated and/or signed in Italy is not considered a 'domestic award' under Italian law if the parties-or the arbitrators, failing any indication by the parties-have established the place of arbitration outside Italy.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

The recognition and enforcement of all foreign awards are governed by Arts. 839 and 840 of the Civil Procedure Code, inserted in that Code by Art. 24 of Law No. 25 dated 5 Jan. 1994 (unchanged by the arbitration reform of 2 February 2006).

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

There is no specific limitation period applicable to recognition and enforcement of foreign awards under Italian law. However, it has been argued that the limitation period applicable to legal proceedings for the recognition and enforcement of foreign judgments in Italy also applies to foreign awards.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

If the limitation period applicable to legal proceedings for the recognition and enforcement of foreign judgments in Italy also applies to foreign arbitral awards, the relevant limitation period would be 10 years as from the date on which a court action can be brought, i.e. when the foreign award has become binding and has been duly notified to the parties. That 10-year limitation period coincides with the general (ordinary) limitation period for substantive rights in Italy provided for by Art. 2946 of the Civil Code.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The president of the court of appeal in whose district the party against which recognition and enforcement are sought has its legal seat, if such place is in Italy; the president of the Rome court of appeal, if such place is outside Italy.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no specific jurisdictional requirements for the recognition and enforcement of a foreign award. Nevertheless, the request is subject to the general requirements applicable to all judicial proceedings: (i) the party seeking recognition and enforcement and the party against which recognition and enforcement are sought must have active and passive locus standi (legittimazione attiva e passiva), i.e. they must be parties to the dispute resolved by the award or the legal successors of such parties; and (ii) the party seeking recognition and enforcement of the award must have a legitimate interest to act (interesse ad agire). As this requirement is construed broadly, even the losing party in the dispute resolved by the award could be entitled to apply for the recognition and enforcement of the award if, by so doing, it could achieve some concrete and identifiable advantage.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision is obtained through ex parte proceedings.

(Source: CPC, Art. 839.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

Two. The first decision (decreto, literally 'decree') granting or denying effects to the award rendered by the president of the court of appeal is subject to appeal (citazione in opposizione, literally 'opposition') before the same court of appeal.

(Source: CPC, Art. 840 para. 1.)

The judgment of the court of appeal deciding on the opposition can be challenged before the Supreme Court (Corte di Cassazione). However, the Supreme Court's review is limited to legal as opposed to factual grounds.

(Source: CPC, Art. 840 para. 2.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

The decision of the president of the court of appeal recognizing the award becomes final and enforceable once the time limit for the opposition has elapsed. In such case, the decision, together with the award, constitutes an enforceable document (titolo esecutivo) allowing the party to start a procedure of execution against the assets of the respondent pursuant to Art. 474 CPC.

When an opposition is raised, failing a specific statutory provision, opinions are divided as to whether or not the party seeking recognition is entitled to initiate execution proceedings against assets before the final judgment of the court of appeal has been rendered. In practice, nothing seems to prevent the court from granting provisional execution in special situations, pending its final decision.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The applicant must supply the following evidence: (i) the award and (ii) the arbitral agreement.

(Source: CPC, Art. 839.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

As far as the award is concerned, it is necessary to provide the entire document. As to the contract, the arbitration clause suffices.

(c) Are originals or duly certified copies required?

The applicant may submit either the originals or duly certified copies thereof.

(d) How many originals or duly certified copies are required?

Two originals or duly certified copies are required in order to initiate the ex parte proceedings.

(e) Does the authority or court keep the originals that are filed?

Yes.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, of both the award and the arbitration agreement.

(b) If yes, into what language?

Italian.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

The translations have to be certified either by a sworn translator or by a diplomatic or consular agent.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

A translation of the arbitration agreement only (not the entire document in which it is contained) and a translation of the entire award are necessary.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: CPC, Art. 840 para. 4.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

There are no other grounds on which a court could stay legal proceedings for recognition and enforcement.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Upon demand of the party seeking recognition and enforcement, the Court can order the other party to provide a security.

(Source: CPC, Art. 840 para. 4.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

The arbitral award and the arbitration agreement, once filed with the court, form part of the court's record. However, as a general principle of civil procedure, only the parties and their counsel have access to such record.

(Source: provisions on entry into force of the CPC, Art. 76.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

There are no hearings in the initial ex parte proceedings. Only the parties and their counsel are admitted to the hearings usually held in the subsequent opposition proceedings.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

The ex parte decision of the court of appeal granting or denying recognition and enforcement is not published, whereas the appeal judgment is published. In this case, steps may be taken to remove the names of the parties to an arbitration, but only in circumstances that seldom apply to international commercial arbitration.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Partial foreign awards can be recognized and enforced in Italy. Under Italian law, arbitrators are not authorized to order interim measures. Consequently, it has been argued that interim measures ordered by a foreign arbitrator, even in the form of interim awards (as opposed to procedural orders), cannot be recognized or enforced in Italy.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

Foreign awards granting non-monetary relief can be recognized and enforced in Italy, provided that they do not conflict with public policy.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

In principle, the content of a foreign award for which recognition and enforcement is sought in Italy in ex parte proceedings pursuant to Article 839 CPC cannot be altered or reduced. However, the court is free not to recognize parts of the award if flawed on grounds of public policy or arbitrability. In any subsequent opposition, inter partes, if the court finds that part of the award deals with a matter not covered by the arbitral agreement or contains decisions that go beyond what was requested from the arbitrators, it may refuse to recognize and enforce that part and grant recognition and enforcement for the rest of the award only if such part can be separated from the rest of the award.

(Source: CPC, Art. 840 para. 3 no. 3 (which reflects New York Convention, Art. V(1)(c)).)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

An award cannot be recognized and enforced if it has been set aside by the competent authority of the country in which, or under the law of which, it was made.

(Source: CPC, Art. 840 para. 3 no. 5.)

Consequently, when the award is set aside in such country after recognition and enforcement in Italy, such recognition and enforcement can be revoked.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur : Gabriele Crespi Reghizzi.