ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
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 regularity of the award and ascertains if any of the grounds listed in Article V(2) of the New York Convention 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 arbitra - tion agreement and, if these documents 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 • 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
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