ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
tion prevent recognition. The request ( ricorso ) must be addressed to the president of the court of appeal of the district of the domicile, or registered office, of the award debtor. It must also be accompanied by either the original or a true copy ( copia conforme ) of the award and arbitration agreement and, if these docu - ments are drafted in a language other than Italian, by a certified translation. The ex parte phase ends with the president of the court of appeal issuing a decree whereby they either declare the award immediately enforceable or dismiss the application (Article 839 of the CCP). In the second phase, any interested party may chal - lenge the aforementioned decree before the court of appeal acting as a panel. Pursuant to Article 840 (3) of the CCP, in the ensuing adversarial phase, the competent court will deny rec - ognition and enforcement of the foreign award if the award debtor proves any of the five grounds listed in Article V(1) of the New York Convention and restated in Article 840 (3) of the CCP – namely: • incapacity of the parties or invalidity of the arbitra - tion agreement; • breach of contradictoire (adversarial procedure); • the award dealing with differences not contem - plated in the arbitration agreement or being ultra petita partium; • irregularities in the establishment of the tribunal and failure to comply with procedural rules; or • the award being not yet binding on the parties or having been set aside or suspended. Moreover, under Article 840 (5) of the CCP, recogni - tion and enforcement may also be denied ex officio if the court finds that either of the two grounds for non-recognition set out in Article V(2) of the New York Convention apply – namely: • the dispute settled by the award lacking subject matter arbitrability under Italian law; or • the award being contrary to Italian public policy. In this last respect, public policy is to be construed narrowly by reference to international public policy (rather than the broader concept of domestic public
policy). It follows that foreign awards will be refused recognition in Italy on public policy grounds only if they are at loggerheads with the fundamental values enshrined in the Italian Constitution. Lacking any specific statute of limitations, it is gener - ally held that foreign awards may be recognised and enforced in Italy within the ordinary ten-year statute of limitations under Article 2946 of the Italian Civil Code. 4.5 Costs and Time Taken to Enforce Arbitral Awards The court fees for the filing of the application for the enforcement of a domestic award or the recognition and enforcement of a foreign arbitral award consist of a fee of EUR98 ( contributo unificato ) and stamp duty amounting to EUR27. The recognised award is, how - ever, subject to a registration tax (at a rate of either 1% or 3% depending on the type of relief awarded). The proceedings for granting exequatur to a domestic award as well as the ex parte phase for the recognition and enforcement of a foreign award are both quite swift, in that they may last less than a month. On the other hand, the potential adversarial phase of the rec - ognition and enforcement of foreign awards may take up to one year or more. 4.6 Challenging Enforcement of Arbitral Awards Domestic Awards The losing party may challenge the award before the court of appeal at the seat of the arbitration under Articles 828 and 829 of the CCP. Parties to the arbi - tration cannot waive ex ante the right to request the setting-aside of the award. In line with most advanced arbitration laws, Italian law provides narrow grounds for setting aside. Article 829 (1) of the CCP lists 12 procedural violations that war - rant the setting-aside of an award – namely: • invalidities tainting the arbitration agreement; • invalidities affecting the appointment of arbitrators; • incapacity of the arbitrators; • the award containing a decision that is ultra petita partium;
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