ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
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 Arti - cles 828 and 829 of the CCP. Parties to the arbitration 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 set-aside. Article 829 (1) of the CCP lists 12 procedural violations that warrant 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;
• failure of the award to fulfil mandatory formal requirements; • failure of the arbitral tribunal to decide within the time limit for rendering the award; • failure to comply with the procedural formalities set by the parties; • conflict with a previous award or a court decision that has become res judicata; • failure to comply with the principles of fair trial and contradictoire • failure to decide on the merits when a decision on the merits was due; • contradictions affecting the operative part of the award; and • failure to rule on any of the parties’ claims or objec - tions in accordance with the arbitration agreement. Awards may be challenged for errors in law only if the parties expressly provided so or when contemplated by law (as for corporate and labour law disputes). Lastly, awards may be set aside for breach of Italian public policy pursuant to Article 829 (3) of the CCP. Foreign Awards The grounds under which a foreign award may be refused recognition are those set forth by the New York Convention. As a general rule, awards set aside by the courts at the seat cannot be enforced in Italy pursuant to Article V(1)(e) of the New York Convention and Article 840 (3)(5) of the CCP. It has, however, been argued that an award set aside at the seat of the arbitration could nonetheless be rec - ognised and enforced in Italy if the foreign judgment setting aside the award could not itself be recognised in Italy under one (or more) of the grounds set forth by Article 64 of the Italian Private International Law Act. Another debated point is whether decisions recognis - ing a foreign award are affected by the subsequent setting aside of the award at the seat. The prevail - ing view is that, even though the judgment granting exequatur would not be affected per se and would continue to display res judicata effects, the annulment of the award could be invoked at the enforcement stage under Article 615 of the CCP as a ground to resist enforcement on the debtor’s assets.
266 CHAMBERS.COM
Powered by FlippingBook