Recognition and enforcement in Italy of civil and commercial decisions and arbitral awards

Publication April 2017

This guidance note summarizes the rules relating to recognition and enforcement in Italy of civil and commercial foreign decisions and arbitral awards.

Recognition and enforcement in Italy of EU decisions

Recognition and enforcement in Italy of an EU judgment is governed by EU Regulation no. 1215/2012 (the “EU Regulation”). The EU Regulation provides that “a judgment given in a Member State shall be recognized in the other Member States without any special procedure being required” (see Article 36) and that “a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required” (see Article 39). Therefore, any judgment given in a Member State shall be immediately recognized and enforceable in Italy1.

Nevertheless, for the purposes of enforcement, it is also necessary to obtain (from the Court of origin):

  • a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
  • a certificate issued pursuant to Article 53 of the EU Regulation (using the form set out in Annex I), certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest (see Article 42 and Article 53).
  • Moreover, it is also advisable to obtain a certified translation of both the judgement and the certificate (even if this is not a mandatory requirement).

Once the copy of the judgment and the certificate (and the related translations) have been obtained, they are served on the party against whom enforcement is sought together with the notice of payment (“precetto”). The enforcement procedure that follows is entirely governed by Italian Law (see below), as provided for by Article 41 of the EU Regulation.

Recognition and enforcement in Italy of Non-EU decisions

Recognition and enforcement of non-EU judgments in Italy is governed by Articles 64 et seq. of Law No. 218 of 31st May 1995 (the “Law”).

According to Article 64 of the Law, a foreign judgment shall be automatically recognized in Italy without requiring any further proceedings if:

  • the foreign court had jurisdiction on the matter under Italian law;
  • the defendant was properly served with the original writ of summons or claim pursuant to the law of the state where the proceedings took place, and the fundamental rights of defence have not been violated;
  • the parties appeared before the foreign court in compliance with local procedural law, or a default of appearance was properly declared in accordance with such law;
  • the foreign judgment is final and binding according to the law of the State in which it was issued;
  • the foreign judgment does not conflict with any other final judgement issued by an Italian Court;
  • no proceedings are pending before an Italian Court between the same parties and on the same subject matter which were initiated before the foreign proceedings; and
  • the rulings contained in the foreign judgment do not conflict with Italian public policy.

Pursuant to Article 67 of the Law, in the case of a challenge to the automatic recognition of a foreign judgment or in order to enforce a foreign judgment, any interested party may request the Italian Court to ascertain whether the requirements for recognition are satisfied.

Therefore, while recognition is automatic (unless challenged pursuant to Article 67 of the Law), for the purposes of enforcement, prior formal recognition by an Italian Court is a formal requirement2.

After foreign judgment has been recognised, the enforcement procedure that follows is entirely governed by Italian law (see below).

Recognition and enforcement in Italy of foreign arbitral awards

Recognition and enforcement of foreign awards is governed by Articles 839 et seq. of the Italian Code of Civil Procedure, which reflect the provisions set out in the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Award (the “Convention”).

A party interested in the recognition of a foreign award in Italy3 has to file a petition with the Court of Appeal of the district where the other party has its domicile or registered office, or, if the latter does not have a domicile or a registered office in Italy, before the Court of Appeal of Rome.

The applicant must file the original award or a certified copy of the award, as well as an original or a certified copy of the arbitration agreement (together with a certified translation of such documents, if they are not written in Italian). Then, the President of the Court of Appeal grants the award an exequatur, after having ascertained that (i) the subject matter of the dispute can, under Italian law, be subject to arbitration; and (ii) the award does not violate Italian public policy.

If such conditions are met, then the award is recognized in Italy. The timing of the granting of the exequatur may vary and depends on the Court’s workload.

Once the recognition proceedings are completed, the party seeking the enforcement of the award should serve a final notice of payment together with the decree granting the exequatur on the other party, who may challenge the same within the following 30 days by commencing ordinary proceedings before the Court of Appeal.

A party may challenge the decree granting or denying the exequatur only on the following grounds:

  • the parties to the arbitration agreement lacked legal capacity under the applicable law, or the arbitration agreement itself was invalid under the law agreed by the parties (or, in the absence of the parties having indicated the applicable law, under the law of the state in which the award was issued);
  • the party against whom the award is relied upon was not informed of the appointment of an arbitrator or of the arbitration proceedings themselves, or it was impossible for that party properly to defend the proceedings;
  • the award is based on matters outside the scope of the settlement agreement or the arbitration clause;
  • the arbitral tribunal or the arbitration proceedings themselves failed to conform with the agreement between the parties, or, in the absence of an agreement, with the law of the place in which the arbitration proceedings were conducted;
  • the award has not yet become binding on the parties or was suspended or annulled by the competent authority in the country in which, or in accordance with the law under which, the award was issued.

Pending a challenge against the exequatur, temporary enforcement of the award may be granted by the competent Court of Appeal pursuant to Article 648 of the Italian Code of Civil Procedure.

Commencement of the enforcement procedure in Italy

Under Italian law, before starting the enforcement procedure, a creditor must serve on the debtor a final notice of payment to the debtor (precetto), requiring the latter to comply with the judgement within a deadline of at least 10 days. The notice shall contain a warning that, in the case of failure to comply with the decision, the decision itself will be enforced (see Article 480 of the Italian Code of Civil Procedure). After (at least) 10 days, if the debtor fails to comply, the creditor may commence enforcement proceedings by serving on the debtor a notice of seizure (pignoramento). There are different methods of enforcement that depend mainly on the type of asset subject to enforcement. These procedures are governed by different rules (and the timing of the enforcement may vary) depending on whether the property is immovable or movable, or whether the asset is in the hands of third parties (e.g. in case of credits).

Conclusion

The analysed legal framework has sped up and simplified the procedure for the recognition and enforcement in Italy of foreign decisions and arbitral awards. This results in tangible benefits for parties (individuals or companies) who may encounter fewer administrative obstacles to recovery of their debts and avoid spending time and valuable resources on re-litigation in Italy, once their dispute has already been decided abroad. The EU Regulation in particular has served to foster cross-border transactions in the EU.


Footnotes

1

However, on the application of any interested party, the recognition and/or the enforcement of a judgment shall be refused in certain circumstances, including when: “(a) such recognition is manifestly contrary to public policy in the Member State addressed; (b) the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; (c) the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed; (d) the judgment is irreconcilable with an earlier judgment given in another Member State or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed” (see Articles 45 and 46 of the EU Regulation).

2

The Law shall be applied without prejudice to any other international conventions or treaties to which Italy is a party.

3

An arbitration proceeding shall be considered foreign if its seat is outside Italy.


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