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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
2. Date of entry into force of the New York Convention
1 May 1969.
(Source: Law No. 62 of 19 Jan. 1968.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(b) commercial relationships?
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 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 national provisions on arbitration contained in the Civil Procedure Code, as opposed to the New York Convention, apply to arbitration proceedings and awards only when the place of arbitration (sede dell'arbitrato) is located in Italy. Therefore, all arbitration procedures and awards are considered as domestic if Italy is the place of arbitration. An award deliberated and/or signed in Italy is not considered domestic under Italian law if the parties-or, failing any indication by the parties, the arbitrators-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, introduced by Art. 24 of Law No. 25 dated 5 Jan. 1994 (unchanged by the arbitration reform of 2 Feb. 2006).
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?
No. However, it has been argued that the limitation period applicable to legal proceedings for the recognition and enforcement of foreign judgements 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 judgements in Italy also applies to foreign arbitral awards, the relevant limitation period would be 10 years 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 in 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 seat is in Italy; if not in Italy, the President of the Court of Appeal of Rome.
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 the respondent in the jurisdiction, etc.)?
There are no specific jurisdictional requirements for the recognition and enforcement of foreign awards. An application for recognition and enforcement is subject to the general requirements applicable to all judicial proceedings:
(i) the applicant 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; and
(ii) the applicant 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?
Ex parte proceedings.
(Source: Civil Procedure Code, Art. 839.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two. The first decision (decreto) granting or denying effects to the award, rendered by the President of the Court of Appeal, is subject to appeal by way of opposition (citazione in opposizione) in the same Court of Appeal.
(Source: Civil Procedure Code, Art. 840, para. 1.)
The judgment of the Court of Appeal deciding on the opposition can be challenged in the Supreme Court (Corte di Cassazione). However, the Supreme Court's review is limited to legal as opposed to factual grounds.
(Source: Civil Procedure Code, 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?
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 of the Civil Procedure Code.
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 judgement of the Court of Appeal has been rendered. In practice, nothing seems to prevent the Court of Appeal from granting provisional execution in special situations, pending its final decision.
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 applicant must supply the following evidence at the time of the application: (i) the award and (ii) the arbitral agreement.
(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, this is a necessary precondition for the admissibility of the exequatur proceedings (presupposto processuale) and must be fulfilled at the time of application. Compliance with this precondition must be ascertained ex officio by the court seized.
The authentication and certification requirements set by Art. IV(1) of the New York Convention must be interpreted according to Italian law.
Such principles also apply to copies of awards released by foreign arbitral institutions pursuant to their rules of arbitration.
(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?
(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?
(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 (not the entire document in which it is contained) 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 Art. V(1)(e) of the New York Convention?
(Source: Civil Procedure Code, 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)?
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
At the request of the party seeking recognition and enforcement, the court can order the other party to provide a security.
(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. As a general principle of civil procedure, only the parties and their counsel have access to such record.
(Source: Civil Procedure Code, Implementing Provisions, 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 secrets or State secrets)?
The ex parte decision of the Court of Appeal granting or denying recognition and enforcement is not published, whereas the appeal judgement 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. an 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 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, ex parte proceedings for the recognition and enforcement in Italy of a foreign award pursuant to Art. 839 of the Civil Procedure Code cannot alter or reduce the content of the award. However, the court is free not to recognize parts of the award that are flawed on grounds of public policy or arbitrability. In the event of an (inter partes) opposition to the exequatur, the court may refuse to recognize and enforce that part of the award which deals with a matter not covered by the arbitral agreement or which contains decisions going beyond what was requested from the arbitrators, and grant recognition and enforcement to the remaining part of the award if it can be separated from the rest of the award.
(Source: Civil Procedure Code, 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 whose law, it was made.
(Source: Civil Procedure Code, Art. 840, para. 3, no. 5.)
Consequently, when the award is set aside in such country after recognition and enforcement in Italy, its 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.)?
Court decisions granting recognition and enforcement of awards (whether foreign or domestic) are subject to a registration tax which varies according to the content of the award but normally does not exceed 3% of the value of the awarded sum, property or right.
(Source: Presidential Decree No. 131 of 26 Apr. 1986, Tariff, Art. 8.)
Gabriele Crespi Reghizzi