ITALY Law and Practice Contributed by: Giovanna Aucone and Debora Gobbo, FIVERS Studio Legale e Tributario
response brief of the defendant, and the appear- ance of the parties in the proceeding; • the hearing stage, which consists of preliminary checks regarding the procedural requirements and issues that can be raised ex officio, the definition of the subject matter of the dispute and the prelimi- nary requests and scheduling of the first hearing, in which, among other things, the parties must appear in person for the purposes of attempting conciliation; • the preliminary investigation stage, where the evi- dence is gathered; and • the decision phase, in which the judge pronounces the judgment that closes the proceeding and which, if not appealed, becomes final. As to disputes considered non-complex, either because the facts of the case are not disputed or because the claim is based on documentary evidence, or the investigation is not complex, a simplified pro- cedure applies. 9.4 Enforcement of Judgments Pursuant to Article 282 of the Code of Civil Procedure, judgments are – automatically and without the need for a specific request by the parties – provisionally enforceable. On the other hand, a party may request the suspension of the enforceability of the ruling along with the appeal against such ruling. The suspension will be granted if the appeal appears to be founded or if the enforcement of the judgment could cause seri- ous and irreparable harm. Pursuant to Article 64 of Law No 218/1995, judgments issued in a third (non-EU) country are recognised in Italy without the need for additional proceedings. However, this automatic recognition is subject to the fulfilment of certain essential requirements by the judgment issued. Pursuant to Article 36 of the Brussels I-bis Regulation (EU Regulation No 1215/2012), a judgment issued in a member state is automatically recognised in the other EU countries and, pursuant to Article 39, judgments that are enforceable in the country of origin are also enforceable in other EU member states without the need for a further declaration of enforceability. How- ever, Article 46 provides for the possibility to request
the refusal of enforcement on the basis of the grounds referred to in Article 45. 9.5 Enforcement of Arbitration Clauses Arbitration clauses that provide for the referral of dis- putes to arbitration, once included in the contract between the parties, are enforceable and binding, to the extent that if the parties bring a dispute before a court instead of an arbitrator, the court may declare that it lacks jurisdiction to decide the dispute due to the existence of an arbitration agreement (Articles 819 and 819-ter of the Code of Civil Procedure). For the enforcement of an arbitration clause, it is essential that such clause is drafted in a precise man- ner and contains all the essential elements, such as: • the express willingness of the parties to resolve disputes through arbitration; • the scope of application; • the number of arbitrators in the panel; • the rules and the arbitration institution of reference; • the place of arbitration; • the language of arbitration; and • the applicable law. 9.6 Enforcement of Awards In the Italian legal system, there are various forms of arbitration and, therefore, arbitration awards. The most important distinction is between so-called for- mal arbitration, to which the provisions of the Code of Civil Procedure apply, and so-called informal arbitra- tion, which is governed by the parties. The award issued following formal arbitration has the same effects as a judgment and therefore settles the dispute and is binding for the parties (Article 824-bis of the Code of Civil Procedure). An award issued at the end of an informal arbitration proceeding has the same effect as a binding contract between the parties. Therefore, if the award is not executed, the parties may invoke remedies given by the civil law. The Code of Civil Procedure further provides a spe- cific procedure for the recognition of foreign awards, which is designed to ensure compliance with funda-
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