Government authorities

Relevant authorities

What are the relevant government agencies or departments with authority over projects in the typical project sectors? What is the nature and extent of their authority? What is the history of state ownership in these sectors?

Historically, state ownership in these sectors has been particularly prominent (eg, ENI for oil and gas, and Enel in the electricity sector). Over the past 20 years, however, considerable efforts have been made to liberalise such sectors. At present, a number of authorities are involved in projects and they vary considerably depending on the stage of the project (development or operational) and whether it is a mere public procurement or a public-private partnership (PPP).

As a general rule, a key role in project finance transactions is played by the public authorities responsible for the relevant service or infrastructure involved in the PPP, which manage the tender process and act as grantor. Accordingly, the oil, gas and minerals extraction sector, and the power transmission and telecommunications sectors, are generally under the authority of the Ministry of Economic Development. Transportation (except for local transportation) and ports are under the Ministry of Infrastructures. The Transport Regulation Authority is also responsible for economic regulation in the field of transport, as well as the Inter-ministerial Committee for Economic Planning, which is a political decision-making institution headed by the President of the Council of Ministers with a function of coordination in the planning of the economic policy to be followed at national and international level. In the energy sector, power generation is a liberalised activity but PPPs are possible mainly in the energy efficiency sector. In this regard, the following must be mentioned: the National Operator for Energy Services, which, among other things, manages revenue deriving from renewable sources and efficiency projects; and the Authority for Energy, Network and Environment Regulation, which, among other things, ensures competition and efficiency with respect to public utilities, and defines fixed and transparent tariff systems based on pre-selected criteria to protect the interests of users and consumers.

In addition, other authorities responsible for issuing permits and authorisations during the structuring phase and for assessing the environmental risks of the project (eg, the Ministry of the Environment and authorities for the relevant regions and provinces) are involved.

The control and monitoring functions are attributed to the National Anti-corruption Authority, which is responsible for preventing corruption in Italian public administration by imposing transparency in management matters as well as supervising activities connected to public contract.

Depending on the features of the project, other agencies and departments may have authority.

Legal issues of general application

Government permission

What government approvals are required for typical project finance transactions? What fees and other charges apply?

Except for the permits and authorisations necessary to perform the relevant activities (eg, the construction of buildings and infrastructure), no specific government approval is required for typical project finance transactions. However, in some cases the award subject to public tender procedure is required. Likewise, no specific fees and charges apply. As for the finance documents, charges related to their registration may apply.

Registration of financing

Must any of the financing or project documents be registered or filed with any government authority or otherwise comply with legal formalities to be valid or enforceable?

Finance and project documents that have to be executed by notarial deeds shall be drafted in the Italian language and may include a courtesy translation.

If the relevant finance or document is to be signed by, or notified to, any public authority, normally the notarial form is required and further formalities should be complied with. In particular, for instance, the pledge of receivables towards public authorities shall be made in notarial form and, in most cases, be expressly accepted by the assigned debtor, while the assignment of receivables arising from the energy feed-in tariff convention with the National Operator for Energy Services shall be executed on the basis of a specific contractual model.

Arbitration awards

How are international arbitration contractual provisions and awards recognised by local courts? Is the jurisdiction a member of the ICSID Convention or other prominent dispute resolution conventions? Are any types of disputes not arbitrable? Are any types of disputes subject to automatic domestic arbitration?

In respect to international arbitration matters, Italy is party to the following international treaties:

  • the 1958 New York UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention);
  • the European Convention on International Commercial Arbitration of 1961;
  • the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927; and
  • the ICSID Convention on the Settlement of Investment Disputes between States and Nationals of other States of 1965.

 

Italian courts fully recognise written international arbitration clauses and agreements, in line with what is provided under article II of the New York Convention.

Under Italian law, contractual and non-contractual disputes are arbitrable, with some exceptions:

  • employment disputes (unless an arbitration clause is provided within the applicable collective bargaining agreements);
  • disputes relating to rights of which a party cannot freely dispose; and
  • further disputes that are not arbitrable by operation of law (eg, tax disputes and disputes concerning the public administration, under certain conditions).

 

Pursuant to article 824-bis of the Italian Code of Civil Procedure, arbitral awards issued within the Italian territory have the same effect as court judgments. In this case, the judicial enforcement of the award can be sought just after filing the award with the court of the seat of arbitration to obtain the judicial enforcement apostille.

Foreign arbitral awards are recognised and enforced on the basis of articles 839 and 840 of the Italian Code of Civil Procedure, which reproduce the requirements set forth under articles IV and V of the New York Convention. Recognition and enforcement of foreign arbitral awards is sought by filing an ex parte application with the competent court of appeal, together with the relevant supporting documentation as required under article IV of the New York Convention. The recognition and enforceability of the award is declared by the court of appeal by decree, which can be challenged by the counterparty within 40 days only on those grounds as provided under article V of the New York Convention (which are reproduced under article 840 of the Italian Code of Civil Procedure).

Law governing agreements

Which jurisdiction’s law typically governs project agreements? Which jurisdiction’s law typically governs financing agreements? Which matters are governed by domestic law?

Generally, project agreements are governed by Italian law, but it is possible for the parties to apply a foreign law upon express choice made under the relevant contract. In any case, the so-called overriding mandatory provisions may not be derogated, upon penalty of disapplication by the Italian courts.

Financing agreements are usually governed by Italian law, but huge cross-border syndicated loans are often subject to foreign law.

Italian law will always apply to project contracts where the counterparty is an Italian public entity. Moreover, as for the collateral created over movable and immovable assets located in Italy, they are subject to Italian law as the relevant security interest is governed by the law of the country where the asset is located.

Submission to foreign jurisdiction

Is a submission to a foreign jurisdiction and a waiver of immunity effective and enforceable?

On the basis of the principle of contractual freedom, the submission to a foreign jurisdiction both in respect to the governing law and to the jurisdiction to hear disputes is effective and enforceable under Italian law and enforced by Italian courts. In this respect, reference is also to be made to the provisions of the Rome I Regulation (EC) No. 593/2008 on the law applicable to contractual obligations, to the Rome II Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations and to the Brussels I Regulation (EC) No. 1215/2012, for certain limitations to the above-mentioned general principle of contractual freedom.

Waivers of immunity are allowed under Italian law, save for certain matters where Italian sovereign immunity is of mandatory application.

Environmental, health and safety laws

Applicable regulations

What laws or regulations apply to typical project sectors? What regulatory bodies administer those laws?

The Environmental Impact Assessment (EIA) Regulation is the main environmental law applying to all typical project sectors. The EIA Regulation may impose an EIA procedure on the project both at a national and a regional level depending on the features and size of the project. At national level, the Ministry of Environment and the Ministry for Public Heritage have authority. At regional level, the region has authority. In addition, the Integrated Pollution Prevention and Control (IPPC) Regulation applies to typical project sectors where a 50 MW (or more) combustion plant is involved. The IPPC Regulation may also apply to other typical projects depending on their features and size (the law provides an exhaustive list of projects, split under national authority and regional authority).

Law stated date

Correct on

Give the date on which the information above is accurate.

1 April 2020.