A. THE SIGNATORY AND THE NEW YORK CONVENTION

Name of Signatory Country (also specify jurisdiction(s), if relevant)

Italy

Date of entry into force of the New York Convention

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

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

(a) reciprocity; and/or

No

(b) commercial relationships?

No

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 is 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 provisions on domestic arbitration contained in the Civil Procedure Code (‘CPC’) apply to arbitration proceedings and awards resulting thereof 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. An award deliberated and/or signed in Italy is not considered a ‘domestic award’ under Italian law if the place of arbitration has been established outside Italy.

B. NATIONAL SOURCES OF LAW

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 foreign awards are governed by Arts. 839 and 840 of the Civil Procedure Code (‘CPC’), as introduced by Art. 24 of Law No. 25 of 5 Jan. 1994 (and unchanged by the arbitration reform dated 2 Feb. 2006). The provisions of the New York Convention are still directly applicable by virtue of the implementation law (Law No 62 of 19 Jan. 1968).

C. LIMITATION PERIODS (TIME LIMITS)

(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 statute of limitation applicable to the recognition and enforcement of foreign awards under Italian law. However, according to a widely shared opinion, recognition and enforcement of foreign awards are subject to the ordinary statute of limitation provided for by Art. 2946 of the Civil Code.

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

The relevant statute of limitation is ten years as from the date on which a court action can be brought, i.e. when the foreign award has become binding.

D. NATIONAL COURTS AND COURT PROCEEDINGS

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 whom recognition and enforcement are sought is resident or has its legal seat, if such place is in Italy; the President of the Court of Appeal of Rome, if such place is outside Italy.

(Source: Art. 839 CPC.)

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 the 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:

  1. 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 legal successors of such parties;
  2. 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.

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: Art. 839 CPC.)

(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’, lit. ‘decree’) rendered by the President of the Court of Appeal granting or denying effects to the award is subject to challenge (‘citazione in opposizione’, lit. ‘opposition’) before the same Court of Appeal.

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

The judgement 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 grounds as opposed to factual grounds.

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

What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?

The decision of the President of the Court of Appeal recognising the award becomes final and enforceable once the 30-day 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, opinions are divided as to whether the party that is seeking recognition is entitled to initiate execution proceedings against assets before the final judgement of the Court of Appeal is rendered (there is no specific statutory provision on this issue).

as become binding.

E. EVIDENCE REQUIRED

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

The award and the arbitral agreement.

(Source: Art. 839 CPC)

(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the 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 authenticated originals or duly certified copies thereof.

According to prevailing case law, such requirement is a necessary precondition for the admissibility of the exequatur proceedings (‘presupposto processuale’), which has to be fulfilled at the time of application. Compliance with this precondition must be ascertained ex officio by the court seized.

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

One original or duly certified copy is sufficient.

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

Yes.

(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 (by an official or sworn translator or by a diplomatic or consular agent (of which country) or by 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. the entire award or only the part setting forth the decisions; the entire contract or only the arbitration clause)?

A translation of the arbitration agreement only, and not of the entire document that contains it, and a translation of the entire award are necessary.

F. STAY OF ENFORCEMENT

(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 Article V(1)(e) of the New York Convention?

Yes.

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

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

G. CONFIDENTIALITY

(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: Art. 76, disp. att. CPC.)

(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 secrets or state secrets)?

The ex parte decision of the President of the Court of Appeal granting or denying recognition and enforcement is not published. The judgement issued by the Court of Appeal at the end of the opposition phase 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

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

Partial foreign awards can be recognised and enforced in Italy.

Under Italian law, arbitrators are not authorised 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 recognised or enforced in Italy.

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

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

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

If the Court of Appeal finds that part of the award deals with a matter that is not covered by the arbitral agreement or contains decisions that go beyond what was requested from the arbitrators, it may grant recognition and enforcement of the part of the award that contains decisions on matters covered by the arbitral agreement and the parties’ submissions, to the extent that such part of the award can be separated from the remaining issues.

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

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?

Without prejudice to Art. IX of Geneva 1961 Convention (for foreign awards falling within its scope of application), a party cannot obtain recognition and enforcement of foreign awards that have been set aside by the competent authority of the country in which, or under the law of which, it was made.

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

Consequently, when a foreign award is set aside in such country after recognition and enforcement in Italy, its recognition and enforcement shall be revoked.

  1. 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.)?

Court decisions granting recognition and enforcement of awards are subject to a registration fee amounting to 3% of the value of the awarded sum.

(Source: Presidential Decree No. 131 of 26 April 1986, Tariff, Art. 8.)

Country Rapporteur: Gabriele Crespi Reghizzi