Massimo Benedettelli and Marco Torsello, ArbLit Radicati di Brozolo Sabatini Benedettelli Torsello
This is an extract from the first edition of GAR’s The Guide to Challenging and Enforcing Arbitration Awards. The whole publication is available here.
Applicable requirements as to the form of arbitral awards
Applicable legislation as to the form of awards
1 Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?
Under Article 823 of the Italian Code of Civil Procedure (CCP), an award must be in writing. Moreover, the deliberation of the award must take place in the presence of all arbitrators, although it need not be unanimous and can be rendered by a majority vote. The award must contain the names of the arbitrators and those of the parties, the seat of arbitration and must quote the arbitration agreement. The award must also include (at least) brief reasoning and the operative part of the award. Finally, the arbitrators must sign the award; the signatures of the majority suffices, provided that the award states (1) that all arbitrators have participated in the deliberation and (2) the reasons why it was not possible for certain arbitrators, or why they refused, to sign the award.
Applicable procedural law for recourse against an award
Applicable legislation governing recourse against an award
2 Are there provisions governing modification, clarification or correction of an award?
Pursuant to Article 826 of the CCP, at the request of one of the parties, an arbitral tribunal may correct an award, provided that the request is filed within one year of notification of the award to the parties. This remedy applies only to clerical and computational errors and to omissions (e.g., if the award does not state the arbitrators’ or parties’ names, or the seat of arbitration). If the arbitrators neglect to correct the award or if the one-year time limit has elapsed, the interested party may file a motion before the court of the seat of arbitration. If the award has been challenged, parties may entrust the competent court of appeals with correcting the award.
Appeals from an award
3 May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?
At the request of the losing party, an award may be set aside by the court of appeals of the seat of arbitration and the right to request the setting aside cannot be waived or relinquished ex ante by the parties. Italian law is consistent with most advanced arbitration legislation in providing limited grounds for a challenge. As a rule, awards may not be challenged on the merits and may be challenged for errors in law only if this possibility was expressly agreed by the parties or it is admitted by law (this happens, for example, if the subject matter of the arbitration is the validity of resolutions of a shareholders’ meeting of companies incorporated under Italian law or a labour dispute, or if an arbitral tribunal has decided on a non-arbitrable preliminary issue). Furthermore, a challenge is always possible in the event that an award conflicts with public policy.
Article 829 of the CCP lists 12 grounds for challenging an award, which consist of procedural violations, namely: invalidities affecting the arbitration agreement; invalidities affecting the appointment of arbitrators; incapacity of the arbitrators; a decision ultra petita; failure of an award to fulfil the mandatory formal requirements; failure to decide within the time limit for rendering the award; failure to comply with mandatory procedural formalities; conflict with a previous award or court decision that has acquired res judicata authority; failure to comply with the principle of fair trial and audi alteram partem; failure to decide on the merits when a decision on the merits was due; contradictions affecting the dispositive part of the award or its reasons; and failure to decide on any of the parties’ claims or defences in conformity with the arbitration agreement. As noted in question 13, these grounds largely mirror those under which an award may be denied recognition or enforcement.
Although annulment is the most relevant remedy, and most often applied for the setting aside of an arbitral award, it is not the only recourse available under Italian law. Article 831 of the CCP extends to arbitral awards the availability of remedies granted in exceptional circumstances against final judgments, even if they are no longer subject to appeal. Hence, revocation of an award (and consequent renewal of proceedings) may be obtained in the event of an award resulting from an act of fraud by the winning party, of an award based on false proofs, or the losing party’s acquisition of new conclusive evidence after the award is rendered, provided that the party had not been able to obtain the evidence previously, or in the event of an act of fraud by the arbitrator declared by a final court judgment. Moreover, the award may be subject to a recourse for annulment by third parties who did not participate in the arbitral proceedings, in the event that the award is detrimental to their rights. Finally, creditors or assignees of one party to the arbitral proceedings can file a recourse for annulment if the award is the result of fraud or collusion to their detriment.
Applicable procedural law for recognition and enforcement of arbitral awards
Applicable legislation for recognition and enforcement
4 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?
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, the winning party who intends to enforce the award must file a request with the court at the seat of arbitration for the granting of the exequatur. In the context of the exequatur proceedings, the court merely reviews the formal validity of the award.
The request for exequatur of a foreign arbitral award must be filed with the court of appeals of the place of domicile of the party against whom the enforcement of the award is sought. If the party against whom the enforcement is sought is not domiciled in Italy, the request must be filed with the court of appeals of Rome. The president of the court of appeals reviews merely the formal validity of the award and declares the award enforceable in Italy, unless the dispute would not have been arbitrable according to Italian law, or the award contains dispositions that are contrary to public policy.
Italy is a contracting state to several treaties that have the aim of facilitating the recognition and enforcement of awards, including the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), the 1961 European Convention on International Commercial Arbitration (the Geneva Convention), the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and several bilateral conventions.
The New York Convention
5 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?
Italy ratified the 1958 New York Convention on 19 January 1968. No reservations were made and the Convention entered into force in Italy on 1 May 1969. Since the ratification took place by way of an instrument (i.e., an execution order) whereby an international treaty is directly incorporated in the Italian legal system, the rules set out by the Convention apply directly in lieu of the provisions laid down by Articles 839 and 840 of the CCP, which remain applicable only for matters not regulated by the Convention, or when providing for a regulation that is ‘more favourable’ to the recognition and enforcement of a foreign award within the meaning of Article VII of the Convention.
6 Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?
In this regard, a distinction must be made between domestic and foreign awards (i.e., awards rendered in arbitrations seated in a foreign jurisdiction).
As mentioned in question 4, Article 824-bis of the CCP provides that, as of the date of the last signature, the award has the same effect as a court judgment. Nonetheless, under Article 825 of the CCP, the winning party who intends to enforce the award must file a request with the court at the seat of arbitration for affixing the exequatur. In the context of the exequatur proceedings, the court merely reviews the formal validity of the award.
The request for exequatur of a foreign arbitral award must be filed with the court of appeals at the place of domicile of the party against whom the enforcement of the award is sought. If that party is not domiciled in Italy, the request must be filed with the court of appeals of Rome. The president of the court of appeals simply reviews the formal validity of the award and declares it enforceable in Italy, unless the dispute is not arbitrable according to Italian law or the award contains dispositions that are contrary to public policy.
7 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?
Jurisdiction for recognition and enforcement is not based on the location of the award debtor’s assets. As with all proceedings filed in Italy, motions to recognise or enforce an award require standing and the interest of the party filing the request.
In the case of domestic awards, the jurisdiction of the court for the exequatur proceedings is established on the basis of the place at the seat of arbitration, wheareas for foreign awards, the court of appeals’ jurisdiction for recognition and enforcement is based on the award debtor’s place of domicile.
However, once an award has obtained the exequatur, the enforcement proceedings on the debtor’s assets are governed by a different set of rules, which deal with enforcement proceedings in general. In this context, the jurisdiction of the court to oversee enforcement and to decide on oppositions thereto, if any, is based, with limited exceptions, on the place where the assets are located.
Form of the recognition proceedings
8 Are the recognition proceedings in your jurisdiction adversarial or ex parte?
As regards the nature of recognition proceedings, irrespective of the territorial origin of the award (domestic or foreign), an initial ex parte phase is provided for, which may be followed by a subsequent adversarial phase. However, the court in charge and the proceedings differ depending on whether the award is domestic or foreign.
Domestic awards are granted the exequatur by the competent court of first instance following a mere review of formal compliance with the mandatory requirement provided by law. The court gives notice to the parties of the grant (or denial) of exequatur. Within 30 days of the date of the notice, either party may file with the court of appeals a request to overturn the court of first instance’s order granting or denying the exequatur. The court of appeals decides in closed chambers after hearing the parties. Recent case law has clarified that, as recourse to the court of appeals is not to be confused with proceedings for the setting aside of an award, the court’s decision cannot be appealed to the Supreme Court.
Different formalities are provided for recognition proceedings relating to foreign awards. The request for exequatur is filed with the court of appeals (rather than with the court of first instance) and the review by the president of the court of appeals implies a scrutiny not only of the formal validity of the foreign award, but also of the arbitrability of the matter decided by the arbitral award under Italian law and of the compliance of the award with Italian public policy.
Also with regard to foreign arbitral awards, the ex parte phase may be followed by an adversarial phase before a panel, in accordance with the procedure provided for by Article 645 of the CCP (concerning the procedural rules applicable to oppositions to payment or delivery orders rendered ex parte). The adversarial phase is triggered by one of the parties filing its opposition to the exequatur, provided that it is filed within 30 days, which run either from notification of the notice of refusal of recognition of the award, or from service of the decree granting the exequatur.
Form of application and required documentation
9 What documentation is required to obtain the recognition of an arbitral award?
The enforcement of a domestic award requires a request to be filed with the competent court of first instance at the seat of arbitration, accompanied by the original, or a certified copy, of the award and the original, or a certified copy, of the arbitration agreement. The request for recognition and enforcement must be signed by a lawyer duly admitted to the bar and endowed with special power of attorney.
The same formalities apply, mutatis mutandis, to the recognition and enforcement of foreign arbitral awards before the competent court of appeals.
Translation of required documentation
10 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?
Pursuant to Article 839(2) of the CCP, if rendered in a language other than Italian, the award and the arbitration agreement must be submitted with a certified translation into Italian.
As for other documents that may be requested and submitted during the opposition phase, these must also be submitted with an Italian translation in accordance with Article 122 of the CCP. However, if the other party does not raise any objection to the submission of documents without an Italian translation, judges may exempt the party from submitting a translation. Likewise, as a rule, translations must be duly certified, but if no objection is raised, a courtesy translation may suffice.
Other practical requirements
11 What are the other practical requirements relating to recognition and enforcement of arbitral awards?
The petitioner must pay fees consisting of the standard court fees and administrative stamps. Moreover, both the award and the arbitration agreement (whether submitted in original or certified copies) must bear a fixed-price tax stamp; the same requirement applies to certified translations. A registration tax is also payable for an enforcement, which is currently levied at an amount equal to 3 per cent of any sum of money that a party is required to pay in the award or to 1 per cent of any right having a patrimonial value on the existence of which the award has been adjudicated. The arbitrators have no direct or vicarious obligation for the payment of taxes. If the award is annulled after the registration tax has been paid, the party who made the relevant payment is entitled to be reimbursed by the tax authorities, provided that the relevant application is filed within three years of the date on which the payment was made or the award was annulled, whichever is the later.
The petitioner must file the required documents with the registry of the competent court.
Finally, lawyers’ fees incurred in these proceedings are subject to the loser-pays rule and can thus be reimbursed according to Ministerial Decree No. 55/2014.
Recognition of interim or partial awards
12 Do courts recognise and enforce partial or interim awards?
Awards may be recognised and enforced regardless of whether they are partial or final.
As regards enforcement, one should distinguish between declaratory and constitutive awards, on the one hand, and condemnatory awards, on the other hand. Although all types of (domestic) awards produce the same effects as a court judgment, irrespective of the granting of the exequatur by the court of first instance, only awards whose operative part is condemnatory may be enforced, entered in public registries or provide a legal basis for the filing of a court-ordered mortgage on the award debtor’s immovable property, pursuant to Article 825 of the CCP.
Grounds for refusing recognition of an award
13 What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?
The grounds under which an award may be refused recognition correspond to those set forth by the New York Convention of 1958.
First, the court of appeals shall refuse recognition either when it finds ex officio that the dispute was not arbitrable under Italian law or when the award contains provisions contrary to public policy. In this context, public policy must be construed as a reference to international (rather than purely domestic) public policy (i.e., it refers to the core of fundamental values that are enshrined in the Italian constitution and bar the recognition of conflicting foreign judgments).
The court of appeals shall also deny recognition if, in the adversarial opposition filed by the party against whom the award is invoked, that party proves the existence of one of the following circumstances:
- the parties to the arbitration agreement were, under the law applicable to them, under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the state where the award was made;
- the party against whom the award is invoked was not informed of the appointment of the arbitrators or of the arbitration proceedings, or was otherwise unable to present its case in the proceedings;
- the award decided upon a dispute not contemplated in the submission to arbitration or in the arbitration clause, or exceeded the limits of the submission, provided that, if the decisions in the award that concern questions submitted to arbitration can be separated from those concerning questions not so submitted, the former can be recognised and enforced;
- the composition of the arbitration tribunal or the arbitration proceedings were not in accordance with the agreement of the parties or, failing such an agreement, with the law of the place where the arbitration took place; or
- the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the state in which, or under the law of which, it was made, provided that (1) the fact that the award may still be subject to a challenge before foreign courts, or the lack of exequatur by the court of the state of the seat, do not prevent the recognition and enforcement of the award in Italy, and (2) in relation to the states that are also parties to the Geneva Convention, pursuant to Article IX(2) thereof – this provision shall apply only when the award has been set aside under any of the grounds listed in Article IX(1).
Effect of a decision recognising an award
14 What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?
Under Italian law, it is a matter of debate whether a decision that merely declares the recognition of a foreign award is capable of immediate enforcement. The prevailing view is that recognition and enforcement must be kept distinct and that, to proceed with an enforcement, an award must be accompanied by the enforceability decree rendered by the court.
The decision on enforceability of a foreign award can be challenged before the Supreme Court, although the latter may only exercise a limited review of the lower court’s decision.
Likewise, recourse against a decision by the court of first instance granting the exequatur to a domestic award is not subject to de novo review by the court of appeals, which can only be called upon to exercise a limited review of the lower court’s decision.
Awards that have been granted recognition constitute an enforceable order (titolo esecutivo). However, enforcement itself may be initiated only after the recognised award and a writ of enforcement have been served on the award debtor. The award and the writ of enforcement must be served directly on the award debtor and not on the debtor’s counsel.
Decisions refusing to recognise an award
15 What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?
The remedies available to challenge refusals to recognise or enforce an award are the same as those available against decisions that recognise an award and grant the exequatur.
Stay of recognition or enforcement proceedings pending annulment proceedings
16 Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?
Under Article 840(4) of the CCP, the court of appeals ‘may’ (but is not bound to) stay the proceedings pending the outcome of a challenge brought before the competent court of the state of the arbitral seat. The trend is for the court seised with the request for recognition to assess whether the challenge against the award is well founded or merely instrumental.
17 If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?
When staying the proceedings on the recognition and enforcement of an arbitral award, if so requested by the applicant, the court of appeals may order the defendant to post security. In exercising the discretion assigned to them, courts have often emphasised the reference contained in Article 840(2) to the rules applicable in the event of opposition to an ex parte payment order and have applied the criteria developed in that context, which require an assessment based on all circumstances of the case.
Recognition or enforcement of an award set aside at the seat
18 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?
As a general rule, awards set aside by the courts at the seat cannot be enforced in Italy pursuant to Article 840(3), No. 5 of the CCP. However, this provision may be deemed trumped by Article V of the New York Convention, which is the direct source of the obligation of recognition of foreign awards, to the extent that it provides that recognition ‘may’ rather than ‘shall’ be denied when one of the relevant grounds materialises.
Despite the lack of any precedent in point, it has been argued that enforcement could be granted to an award set aside at the seat of the arbitration in the event that the foreign judgment setting aside the award were itself unenforceable in Italy under any of the grounds laid down by Italian private international law (Article 64 of Law 31 May 1995, No. 218).
Italian case law has not settled what happens to decisions recognising a foreign award in the event that the award is then set aside at the seat. The prevailing view among commentators is that the judgment granting the exequatur is not affected per se and it preserves its res judicata authority. However, annulment of the award could be raised as a defence at the enforcement stage under Article 615 of the CCP.
Service in your jurisdiction
19 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?
Service of judicial and extrajudicial documents is governed, in general terms, by Articles 137 to 151 of the CCP, although other statutory provisions may be relevant in practice. The default procedure (set forth in Article 137 of the CCP) requires the participation of a judicial officer, who delivers the judicial or extrajudicial documents to the addressee upon request of a party, a prosecutor or a court clerk.
As a rule, the addressee must be served in person. If the addressee cannot be found at his or her home, domicile or place of business, the documents can be served to a family or household member, to an employee or to the building’s doorman. As an alternative, documents can be served by mail, which is the required procedure when service is to be made outside the officer’s territorial district.
If the addressee cannot be found either in the municipality where he or she currently resides, or has his or her centre of interests, as a last resort, service can be made at the town hall of the municipality of the last known residence of the addressee.
Service of documents on legal entities and companies follows a similar set of rules, outlined in Article 145 of the CCP.
In exceptional circumstances, if the ordinary means of service cannot be adopted, at the request of the interested party the judge can authorise service by special means chosen by the judge (e.g., email, announcements published in specialist press, and the like).
A relevant innovation was introduced by Law No. 53/1994 (as modified by Law No. 183/2011, Law No. 221/2012 and Law No. 132/2015), which has provided for the possibility of service being carried out by lawyers, by mail, telefax or (as from 2011) via certified email.
Service out of your jurisdiction
20 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?
The two main sources of the law governing service out of Italy consist of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the Hague Service Convention) and Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.
The Hague Service Convention entered into force in Italy as of 24 January 1982 without any reservation. Therefore, as far as Italy is concerned, service can be carried out in accordance with either of the alternative procedures provided for by the Convention, including service via the central authorities designated by each state, via postal service, diplomatic agents and judicial officers.
Regulation (EC) No. 1393/2007 allows for service via diplomatic channels, specifically authorised agencies, the postal service and via direct service on the defendant.
Finally, in the absence of any (multilateral or bilateral) international convention, under Article 142 of the CCP, service out of the Italian jurisdiction can be carried out by transmission of one copy of the relevant documents by registered mail and transmission of another copy through the Ministry of Foreign Affairs, upon request by the attorney general.
Identification of assets
21 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?
As a general rule, identification of a debtor’s assets is carried out by a judicial officer, who can directly search the debtor’s premises for attachable assets. In practice, the relevant information is passed to the judicial officer by the creditor and, in particular, it is for the creditor to identify and request seizure of receivables or debtor’s assets that are in the possession of third parties. In conducting a search for assets, judicial officers (and creditors) may have access to the following public databases, among others: the Real Estate Registry (known as Catasto), the Public Automobile Registry and the Company Registry.
Information available through judicial proceedings
22 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
Since 2014, pursuant to Article 492-bis of the CCP, judicial officers in charge of enforcement proceedings, subject to authorisation by the president of the court of first instance, may access all databases run by state administrations, and tax and social security registers. As an incentive, the judicial officer will be rewarded with a bonus based on the value of the identified (and then foreclosed) assets.
Availability of interim measures
23 Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?
Although interim measures are generally available under Italian law, Article 818 of the CCP prevents arbitrators from issuing them. Therefore, award creditors seeking an interim measure can only file a request with the competent court (the only exception to this rule being that, in corporate arbitration, arbitral tribunals can suspend the effects of a resolution via a shareholders’ meeting).
Interim measures prior to or pending enforcement of an arbitral award are issued by the court competent for the enforcement (the court of appeals in the case of foreign awards), following a fast-track adversarial phase or, under special circumstances, ex parte. In the latter case, the addressee of the interim measure is heard by the judge after the issuance of the measure, with a view to confirming, amending or revoking the interim measure.
Under Article 669-bis et seq. of the CCP, the issuance of interim measures is subject to two requirements: the applicant must prove the existence of a serious risk of irreparable harm pending the decision on the merits and of the existence of a prima facie case for the main claim.
When issuing an interim measure, courts may require that the applicant posts security.
Finally, under Article 669-terdecies of the CCP, interim measures (or decisions refusing to grant them) may be appealed through a fast-track procedure before a panel of judges of the same court as the judge that decided on the original application.
The measures that may be granted are either protective or anticipatory. The main types of interim measures are judiciary seizures, evidence seizures, seizures for security and urgency measures.
Judiciary seizures may be granted to ease direct enforcement whenever ownership or possession of an asset is disputed. Evidence seizures are a subtype of judiciary seizures and have the aim of preserving books, registers and other documents or goods that may be a source of evidence.
Seizures for security under Article 671 of the CCP may be authorised in the event of collateral being insufficient; the seizure is performed in the form of (and can be converted into) attachment.
The infrequent measure known as ‘liberating seizure’ can be granted when, pending a dispute over certain facets of an obligation, the debtor offers some assets as collateral to be released from his or her obligation.
Finally, Article 700 of the CCP provides for an atypical and residual anticipatory measure with the aim of protecting a petitioner’s rights from possible irreparable harm.
All the aforementioned measures may apply to immovable, movable and intangible property.
Interim measures against assets owned by foreign states follow the general principles, but the practical enforcement of an interim measure may be limited on grounds of immunity, according to the rules discussed in questions 32 and 34.
Procedure for interim measures
24 What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?
A creditor seeking to obtain an interim measure must file a request with the competent court. The issuance of interim measures is subject to two requirements: the applicant must prove the existence of a serious risk of irreparable harm pending the decision on the merits and of a prima facie case for the main claim.
Interim measures against immovable property
25 What is the procedure for interim measures against immovable property within your jurisdiction?
The procedure for obtaining interim measures against immovable property in Italy is the same as the general procedure for obtaining any interim measures. Special rules apply only as regards the enforcement of interim measures against immovable property, as the creditor is required to request the filing of the interim measure in the public Real Estate Registry.
Interim measures against movable property
26 What is the procedure for interim measures against movable property within your jurisdiction?
The procedure for obtaining and enforcing interim measures against movable property is the same as the general procedure for obtaining and enforcing interim measures.
Interim measures against intangible property
27 What is the procedure for interim measures against intangible property within your jurisdiction?
The procedure for obtaining interim measures against intangible property is the same as the general procedure for obtaining any interim measures. Special rules may apply as regards the enforcement of interim measures against intangible property, as the rules on enforcement follow the rules on attachment and are described in further detail in question 31.
28 What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?
Attachment is the first act of enforcement proceedings and requires the prior filing with the judicial officer of both an enforceable order and the writ of enforcement.
The enforcement proceedings may be started only after 10 days have elapsed since service of the order and writ of enforcement on the debtor, unless the creditor obtains an exemption from the 10-day period from the court. Furthermore, the enforcement proceedings must be started within 90 days of service of the order and writ of enforcement, otherwise the order and the writ must be served anew.
Italian law outlines a standard procedure for attachment, accompanied by special provisions for different types of assets. As a rule, attachment consists of a warning by the judicial officer not to dispose of the collateral specified by the officer, with a request to provide information about any other attachable asset. The debtor may avoid attachment by either asking for conversion of the attached asset or paying the amounts due directly to the judicial officer.
Attachment loses its effects if the applicant does not request sale of the assets or direct assignment within 45 days.
Enforcement proceedings in general are ex parte, but the debtor or a third party may file an opposition, thus triggering an adversarial phase that may consist of opposition to enforcement, opposition to specific acts of the proceedings, or third-party opposition.
Attachment against immovable property
29 What is the procedure for enforcement measures against immovable property within your jurisdiction?
Attachment against immovable assets deviates from the general rules by requiring filing of the attachment order with the Real Estate Registry and by providing different deadlines for the sale of the immovable assets.
Attachment against movable property
30 What is the procedure for enforcement measures against movable property within your jurisdiction?
Attachment against movable property is directed at a debtor’s assets, including any debtor’s assets in the possession of a third party.
The judicial officer follows the general enforcement procedure with only minor deviations. Indeed, the officer proceeds by searching the debtor’s home, then his or her place of business or office for attachable assets.
Special procedures are set for the attachment of vehicles pursuant to Article 521-bis of the CCP, which requires the order of attachment to be filed with the relevant public registry.
Attachment against intangible property
31 What is the procedure for enforcement measures against intangible property within your jurisdiction?
As regards attachment against intangible property, the situation varies depending on the specific type of intangible property at stake. In the event of intangible property resulting from a public registry (as in the case of most intellectual property rights), the attachment requires the filing of the order and the writ of attachment with the relevant registry. In the event of intangible property consisting of participation in the capital of a company incorporated into physical, paper-based shares, the attachment requires a physical annotation of the attachment on the shares on the part of the judicial officer, or the serving of the order with a writ of attachment on the debtor and on the company. In the event of dematerialised corporate shares, the attachment is done by serving the order and writ of attachment on the debtor and on the intermediary in charge of the management of the dematerialised shares (it is still a matter of debate whether or not service is also required on the company whose dematerialised shares are being attached). If, instead, participation in the capital of a corporation is not confirmed by the issuance of any shares (as in the case of private limited liability companies), attachment of the corporate participation quota is done by serving the order with a writ of attachment on the debtor and on the company, followed by the filing of the attachment in the public companies’ registry.
Enforcement against foreign states
32 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?
There are no special rules in Italian law governing enforcement against foreign states. However, Italy is a signatory of the ICSID Convention, so Italian courts are bound to recognise and enforce awards rendered under the umbrella of that Convention.
Beyond the framework of investment arbitration, when faced with the foreign state immunity exception in the context of enforcement proceedings, Italian courts are bound by customary international law, the applicability of which is confirmed by Article 10 of the Italian Constitution.
Usually, as for jurisdictional immunity, the courts adopt a restrictive approach and differentiate between subject matters falling within a state’s public function and those arising from private undertakings, such as entrepreneurial or commercial ventures.
While Italian law does not contain any express provision, it is possible for a foreign state to waive its jurisdictional immunity by consenting to arbitration, although this does not imply an extension of a waiver of immunity to the enforcement.
Service of documents to a foreign state
33 What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?
Foreign states may be served only via diplomatic channels, through the prosecutor’s office. The Ministry of Foreign Affairs, when so requested, delivers the relevant documents to the foreign state’s embassy or to its head of state.
Immunity from enforcement
34 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?
The subjective distinction between a state’s public function and its private undertakings also applies objectively to the characterisation of its assets. Therefore, enforcements of awards are likely to be available only against non-sovereign assets, although this can happen without prior authorisation by the Italian government. Nonetheless, a review of case law suggests that Italian courts tend to adopt a restrictive approach and, if there is any doubt, tend to uphold the immunity defence. For instance, Italian courts have repeatedly denied enforcement on accounts held by foreign central banks, on assets belonging to customs agencies and on assets with attached scientific or cultural value. Conversely, enforcement has been granted on aeroplanes belonging to foreign national carriers and on state-owned freighters and ships.
Waiver of immunity from enforcement
35 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?
The likelihood of a waiver is scant. Therefore, enforcement on assets held in Italy by a foreign state generally requires current consent by the said state. The sole foreseeable exception occurs when a state waives immunity from enforcement by earmarking beforehand certain assets to satisfy claims against it.
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