ITALY Law and Practice Contributed by: Maria Chiara Malaguti, Filippo Rossi and Roberto Longhi, PedersoliGattai
• when an award has not yet become binding or has been set aside or suspended. Under both conventions, the procedural steps for obtaining recognition of an arbitral award are left to the domestic procedures of the state. In Italy, the par- ty seeking recognition and enforcement must file a request before the President of the Court of Appeal in the place where the other party resides or, if that party does not reside in Italy, before the Court of Appeal of Rome. Certified copies of the award and the arbitra- tion agreement must be filed with the request. The award is declared immediately enforceable by decree subject to ex officio review by the President of the Court of Appeal, confirming that: • the award complies with the required formal requirements; • the dispute is arbitrable under Italian law; and • the award does not violate public policy (Article 839 CPC). Pursuant to Article 840 CPC, the presidential decree granting recognition and enforcement of the foreign award may be challenged before the Court of Appeal on the grounds provided for by Article V of the New York Convention. As stated, this would not apply to ICSID awards. Article 840 CPC does not permit the enforcement of a foreign award set aside by the courts at the place of arbitration, as it lists the following among the rea- sons to challenge the recognition of a foreign award: “the award has not yet become binding on the parties or has been annulled or suspended by a competent authority of the state in which, or under the law of which, it was made”. Under Article 827 (2) CCP, courts can set aside arbitral awards and partial arbitral awards, which can be chal- lenged immediately, as well as interim awards, which can be challenged exclusively together with the final arbitral award. 9.2 Approach of the Courts Italian courts tend to adopt a rather restrictive inter- pretation of the grounds for refusing enforcement. Enforcement is therefore generally granted. This also
applies in case of a challenge based on public policy (understood as international public policy). Firstly, par- ties cannot use the public policy ground to re-evaluate the facts that the arbitral tribunal has already ascer- tained. Secondly, the challenge must demonstrate that the award’s outcomes are radically unacceptable to the legal order, not just an error in legal reasoning or application. Finally, as stated, Italian courts tend to interpret public policy narrowly, ensuring that chal- lenges do not become a broad avenue for appealing the merits of an arbitration award. As indicated in 9.1 Enforcement Procedure , Article 840 CPC does not permit the enforcement of a for- eign award set aside by the courts at the place of arbitration. In contrast, should an award be set aside by the courts of the seat after the Italian court’s deci- sion granting the exequatur, this circumstance may be used as a defence during enforcement proceedings or as a ground for revocation of the exequatur pursuant to Article 395.2 CPC. 9.3 Asset Tracing and Recovery When it comes to enforcement of the award on assets of a foreign state or entity, Italian courts will grant enforcement only on assets that are not used for a sovereign purpose. Italian courts tend to follow a fairly prudent approach. The primary category of non- attachable public assets includes those considered part of the demanio pubblico (public domain), such as beaches, ports and public roads, as well as other state property such as military planes and certain cul- tural goods. More generally, Italian courts have no jurisdiction over enforcement or interim measures against assets belonging to a state or its public entities, provided that these assets are intended for the exercise of sovereign functions or, in any case, for their public purposes (Supreme Court, 8 June 2018, No 14885). Therefore, such jurisdiction may be asserted where the assets are intended for commercial or (in general) private activities. Furthermore, under Italian law, certain types of assets enjoy specific protection. By way of exam- ple, pursuant to Article 11, Law No 112 of 8 August 2024, the following may not be seized or attached: money, securities and other valuables that constitute foreign currency reserves of foreign states that the
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