ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
13.3 Circumstances to Challenge an Arbitral Award The parties can challenge an arbitral award on the ground of “nullity” in the following cases: • if the arbitration agreement is invalid, provid- ed that the relevant objection has been raised in a timely manner during the proceedings; • if the arbitrators have not been appointed according to the provisions of the Code of Civil Procedure, provided that the relevant objection has been raised during the pro- ceedings; • if the award has been rendered by a person who could not be appointed as an arbitrator; • if the award exceeds the scope of the arbi- tration agreement provided that the relevant objection has been raised during the pro- ceedings or if the award decides the merits of the dispute when the merits could not be decided; • if the award does not have the requirements set out by law; • if the award has been rendered after the expiration of the time limit, provided that the party’s intention to challenge the award on this ground has been notified to the other parties and to the arbitrators before the issu- ing of the award; • if the formalities required by the parties – under express sanction of nullity – have not been complied with and nullity has not been cured; • if the award is contrary to a previous award or judgment having force of res judicata between the same parties, provided that said award or court decision has not been brought to the attention of the arbitrators during the proceedings; • if the principle of due process has not been observed during the arbitration proceedings;
• if the award concludes the arbitral proceed- ings without deciding the merits of the dis- pute and the merits had to be decided; • if the award contains contradictory provi- sions; or • if the award failed to issue a decision on some of the claims and objections falling under the scope of the arbitration agreement. The award may be appealed on the ground of violation of rules of law relating to the merits of the case only if expressly provided for by the parties or by law. In case of violation of rules of public policy, the appeal is always allowed. Arbitration awards can also be subject to revo- cation and third-party opposition (please see 10.1 Levels of Appeal or Review to a Litigation and 10.2 Rules Concerning Appeals of Judg- ments ). 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Domestic Arbitration In order to render the arbitral award enforce- able, the interested party shall file a motion with the competent court of first instance. The court, having ascertained the formal regularity of the award, shall declare it enforceable. Foreign Arbitration A party wishing to enforce a foreign award in Italy shall file a motion with the competent court of appeal. The president of the court of appeal shall ascer- tain the formal regularity of the award and declare it immediately enforceable unless: • the dispute could not be subject to compro- mise under Italian law; or
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