ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
thereto – if any – is vested, as a rule, in the court of the place where the assets are located. 4.2 Variations in Approach to Enforcement of Arbitral Awards As anticipated, different sets of rules apply to the enforcement of domestic and foreign awards. Domestic Awards The enforcement of domestic awards is governed by the CCP. Article 824-bis of the CCP provides that, as of the date of the last signature, a domestic award has the same effects as a court judgment. Under Article 825 of the CCP, enforcement on the award debtor’s assets requires the prior filing by the winning party of an exequatur request with the court at the seat of arbitration. Foreign Awards The recognition and enforcement of foreign awards is governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the “New York Convention”) – which Italy ratified on 19 January 1968 – and supple - mented by the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 and, with regard to procedural aspects, Articles 839 and 840 of the CCP. Since Italy did not make any of the reservations allowed by Article I(3) thereof, the New York Conven - tion also governs the recognition of awards dealing with non-commercial matters and awards made in the territory of a non-contracting state. As the New York Convention was directly incorporated into the Italian legal system by means of an executive order ( ordine esecutivo ), it applies directly in lieu of Articles 839 and 840 of the CCP, which remain appli - cable only for matters falling outside the scope of the New York Convention or when providing rules that are “more favourable” to the recognition and enforcement of a foreign award within the meaning of Article VII of the New York Convention. 4.3 Categories of Arbitral Awards Not Enforced Recognition of Foreign Awards An award that settles a dispute may be recognised and enforced regardless of whether it is partial (ie, it
rules on some of the disputed issues through a final decision without exhausting the subject matter of the dispute) or final. Notably, an interim award that rules on preliminary procedural issues without settling the dispute – even in part (such as an award upholding the jurisdiction of the arbitral tribunal) – can also be recognised under the New York Convention indepen - dently of recognition of the final award. Enforcement of Domestic and Foreign Awards As to enforcement, a distinction must be made between declaratory or constitutive awards and con - demnatory awards. Even though all types of domes - tic awards display the same effects as a court judg - ment, irrespective of the granting of exequatur, only awards with a condemnatory operative part may be enforced, entered in public registries, or invoked to obtain a court-ordered mortgage on the award debt - or’s immovable property. The same applies to for - eign awards, with declaratory or constitutive foreign awards being recognisable but not enforceable. 4.4 Process of Enforcing Arbitral Awards Domestic Awards Pursuant to Article 825 of the CCP, the winning party that intends to enforce the award must file a request with the court at the seat of arbitration for granting exequatur. The request must be accompanied by the original or a certified copy of the award and the origi - nal or a certified copy of the arbitration agreement. In the context of these proceedings, the court reviews only the formal validity of the award. The enforcement of domestic awards is subject to the ten-year “ordinary” statute of limitations under Article 2946 of the Italian Civil Code. Foreign Awards The procedure for the recognition and enforcement in Italy of foreign arbitral awards consists of two phases: an ex parte phase and a potential adversarial opposi - tion phase. In the first phase, the party seeking recognition in Italy of the foreign award applies to the competent court of appeal, which examines ex officio the formal regu - larity of the award and ascertains whether any of the grounds listed in Article V(2) of the New York Conven -
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