Commercial Arbitration

Italy

Mauro Rubino-Sammartano and Robert Rudek

Bianchi Rubino-Sammartano & Associati

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    Italy is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Award, to which it has made no declarations or reservations.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    Italy is a party to the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965) and to the Geneva Convention on International Commercial Arbitration (1961).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    Arbitration in Italy is governed by sections 806 to 840 Rules of Civil Procedure (RCP) as to arbitration between private parties having their seat in this jurisdiction and as to recognition and enforcement of arbitral proceedings with their seat in other jurisdiction. A distinction has been made by this writer (Rubino-Sammartano, International Arbitration, 2nd ed., Kluwer 2001) between domestic arbitration with a foreign element (referred to as transnational arbitration), foreign arbitration, and arbitration governed by procedural rules such as those of the Washington 1965 Convention, which are not national but international (referred to as international arbitrations).

    The criterion that triggers the application of Italian arbitration law is the venue of the proceedings. Arbitrations taking place in Italy between nationals of different states and/or concerning international trade, that are governed by Italian procedural law are considered domestic (subtype transnational) arbitration. If the venue is in Italy but they are governed by foreign or by international procedural law (except for the mandatory provisions of the lexfori), they tend to be treated by some writers as domestic, while - based on the above procedural criteria - they would be respectively foreign and international.

    Specific provisions govern some aspects of specific areas of arbitration such as Executive Order (D.Lgs.) January 17, no. 5 (2003) as to arbitration of corporate disputes, Act August 11, no. 533 (1973), Executive Order (D.Lgs.) February 2, no. 80 (1998) and Executive Order no. 40 February 2 (2006); as to labour arbitration, Executive Order no. 163 (2006) and Executive Order no. 53 (2010) and Sec. 31, Statute November 4, no. 183 (2010); as to arbitration related to Government procurement disputes; other specific provisions govern aspects of other disputes, such as intellectual property, insolvency and consumers arbitration. Italian arbitration law is not based on the UNCITRAL Model Law.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    Arbitration bodies in Italy relevant to international arbitration are the Associazione Italiana dell’Arbitrato (Rome), the National and International Arbitration Chamber of Milan, the Italian Chapter of the European Court of Arbitration (Strasbourg), the Curia Mercatorum (Treviso) and arbitration chambers at many chambers of commerce. Several of them also act as appointing authorities, if so requested.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    The Italian Chapter of the European Court of Arbitration in Strasbourg is an example of a foreign provider operating in Italy. Several ICC arbitrations take place in Italy.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    There is no specialist arbitration court in Italy.

    Challenges against arbitral awards are as a rule heard by the Court of Appeal. The courts of appeal of the main cities are generally familiar with the law and practice of arbitration.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    The arbitration agreement must be in writing. To be valid, arbitration agreements entered into in Italy must be specifically approved (which is evidenced by a second signature appended at the end of the contract below the first signature, with a specific reference to the arbitration clause as well as to burdensome clauses).

    Arbitrations governed by the New York Convention are exempt from the requirement of this second signature. The signatories of the arbitration agreement must have the authority to commit their principal.

    An arbitration agreement may cover future disputes under a contract (or in tort, if they refer to specifically identified relationships (section 808 RCP)).

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    Only disputes that concern rights of which the parties may dispose are arbitrable. Examples of non-arbitrable disputes are labour disputes (except if specific requirements are satisfied), and disputes about the duration and the rental of leases and which are subject to restrictive legislation.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    The award binds only the parties to the arbitration agreement. If a third party deems that its rights are affected by an award made between other parties, it may challenge the award before the state courts. If the challenge is granted, the award does not produce such effects vis a vis that third party, while it is argued whether it remains valid as to the parties to the arbitral proceedings. Third parties may join the arbitral proceedings to support the position of one party or if they are a necessary party for the dispute to be decided. Third parties may be joined to proceedings or appear only with the consent of all parties.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    An arbitral tribunal with its seat in Italy would be unable to consolidate separate arbitral proceedings related to one or more contracts. Even state courts do not have this authority. In proceedings concerning such disputes, if the same arbitrators are appointed, the proceedings may be heard in parallel but separately.

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    The group of companies doctrine is generally not recognised in Italy. However several tools, such as connection between contracts, unity of contracts, agency, and piercing the corporate veil, help to overcome some of those situations.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    Arbitration agreements are considered separate from the main contract. See Purfina v. Crediti di Venezia y Rio de la Plata, Court of Cassation, July 29, no. 2161 (1964), Rep. Foro. it. 1964, Arbitrato, no. 66, art. 158.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    The principle of competence-competence is recognised in Italy (sec. 817 RCP). The arbitral tribunal is the first one to decide on its jurisdiction and its decision, if challenged, is reviewed by the state court. The validity and efficacy of the arbitration agreement may be submitted to state courts for review before arbitral proceedings are instituted.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    When drafting an arbitration clause, if the seat of the arbitral proceedings will be in Italy, or enforcement of the award will be sought in this country, it should be taken into account that, if the proceedings are not treated as domestic, the arbitration clause need not be specifically accepted (see above item 7), and the award as a rule may not be challenged for errors on substantive law or on the merits. The proceedings on the challenge of the award before the Court of Appeal frequently last between three and four years.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    Institutional international arbitration is more frequent than ad hoc international arbitration. The UNCITRAL Rules are not frequently used in ad hoc international arbitration in Italy.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    When drafting an agreement for multi-party arbitration that will have its seat in Italy, one must ensure that all the parties have an equal opportunity to appoint the arbitrators. If two parties have a close interest, they will generally not be allowed to appoint one arbitrator each, since here is a serious risk of imbalance. Section 816quater RCP provides that multiparty proceedings may take place if the arbitrators are appointed by a third party, or are jointly appointed by the parties. If not, the proceedings must split into several bilateral arbitrations. In the absence of that, arbitration may not take place.

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    Arbitral proceedings are commenced in Italy by serving the request for arbitration – if it contains the appointment of an arbitrator – to the other parties, or otherwise by filing it with the arbitral institution when so provided.

    Limitation is a substantive issue under Italian law. The general limitation period is ten years in contractual matters (see 2946 Civil Code) and five years as to tortious liability (see 2947 Civil Code). Special limitation periods apply to several specific contracts and torts.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    The substantive law is determined in Italy based first on the parties’ choice (provided that choice is not made in fraude à la loi) and in the absence of that, under the Italian conflicts rules. Likewise if the choice is made by the parties but it is not certain.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    The arbitrator must have the capacity to act, he may be national or non-national, male or female, but may not be a legal entity or an association. See Di Lieto v. Cons. Agr. Prov. Catanzaro, Court of Cassation, August 17, no. 2587 (1962), Foro it. 1963. He may also not be a judge, unless he is authorised by the Council of the Judiciary.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    Non-nationals may act as arbitrators in international arbitral proceedings, unless their national law does not allow it.

    They may attend hearings or meetings in Italy provided that they have complied with immigration requirements.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    If no nomination of the arbitrator is made by a party or parties or the selection mechanism fails for any reasons, the arbitrators are appointed by the president of the state court of the venue of the proceedings or, if not yet established, of the place where the arbitration agreement has been entered into, or, if it was entered abroad, of Rome.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    Arbitrators are not afforded immunity from suit in Italy. Liability for damages due to wilful misconduct or gross lack of care, which has caused omissions or delays, is provided for by section 813bis RCP.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    Arbitrators are entitled in Italy to advances on their fees and in the absence of them may, depending on the circumstances, stay the performance of their services. It is debatable whether, if an arbitrator is appointed by an arbitral institution, the institution is directly liable to the arbitrator for his or her fees and if the institution fails to make payment, the parties are liable. The authors suggest that the parties would be liable.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    An arbitrator may be challenged in court in Italy if:

    • the arbitrator fails to meet the requirements set out by the parties;
    • the arbitrator, or a corporation, legal entity or association of which he or she is a director, has an interest on the dispute;
    • the arbitrator, or his or her spouse, is a relative up to the fourth degree, or lives with or regularly eats with a party, an authorised officer of a party or its lawyers;
    • the arbitrator or his or her spouse has a pending litigation or a serious hostility to one of the parties, or its authorised officer or one of its lawyers;
    • the arbitrator is employed by, or regularly advises or renders services to one of the parties, the person or body that controls it, or to a company controlled by it, or entertains another financial or associative relationship that affects his or her independence, or is the guardian or receiver of one of the parties;
    • the arbitrator has given advice, or assistance, to one of the parties in a previous stage of the dispute or has been a witness in it.

    The IBA Guidelines on Conflicts of Interest in International Arbitration are taken into account, even if they are not binding.

    In addition to this, in case of administered arbitration, the arbitration may be challenged also before the arbitral institution, on the specific grounds set out by the institution. The issue whether the two challenges are cumulative is debatable.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    Conservative or interim measures may be granted by state courts, not by arbitral tribunals (section 818 RCP). Anti-suit injunctions affecting state courts of EU member states are not allowed.

    The European Court of Justice has affirmed in Erich Gasser GmbH v. MisatSrl, December 9 [2003] Docket no. C116/02, (DejureGiuffré) and confirmed in Allianz Spa and GeneraliAssicurazioniSpA v. West Tankers Inc., April 2 [2007] that:

    “Under the Brussels Convention (now Regulation 44/2001) anti-suit injunctions impermissibly interfere with the system of jurisdiction established by the Convention, which does not permit the Courts of a Member State to enjoin proceedings in a Court of another Member State”;
    and in Turner v. Grovit Harada Ltd and Changepoint SA (ECR) [2004] I, 3565, that:
    “The challenge of the jurisdiction of the Court of Siracusa (Italy) based on the existence of an arbitration agreement and including the validity of the same, is within the ambit of Regulation no. 44/2001 and it belongs exclusively to that judge to decide on its jurisdiction.”
    This overrules, as to EU disputes, precedents of the UK House of Lords, such as The Angelic Grace [1995] 1 Lloyd’s L.R. PL, which grant anti-suit injunctions when the conduct of the party to be enjoined is unconscionable.

    Anti-suit injunctions concerning non-EU state courts or arbitral tribunals may be applied for in Italy, but it seems rather unlikely that they will be granted.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    Italian law does not allow a state court or an arbitral tribunal to order a party to post a security for costs. This was excluded by the leading precedent Carabbe, Constitutional Court, November 29, no. 67 (1960).

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    Several mandatory rules of procedure govern the conduct of arbitration in Italy. That is the case of the arbitrators' impartiality and breaches of due process. In some classes of disputes, including joint ownership of real estate, rights over real estate, divisions, estates by succession, family agreements, rentals, free bailment, leases of businesses, damage from road or sea accidents, medical malpractice, defamation, insurance, banks and financial agreements, compulsory mediation introduced by the Act (Legge) June 18, no. 69 [2009], Executive Order (D.Lgs.) March 4, no. 28 [2010] and the Decree of the Minister of Justice, October 18, no. 180 [2010] has to take place as a requirement to pursue the court proceedings.

    This condition has been in force since March 21, 2011 as to all such disputes, except for disputes as to rental or road accidents, which will become effective on March 21, 2012.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    If a party refuses to participate in an arbitration, after having been duly advised of it, the proceedings will continue.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    Documentary and oral evidence, as well as the appointment by the tribunal of an expert (in which event each party may appoint its ex parte expert) and inspections of premises and assets are usual in arbitration. The parties are not treated as witnesses and are heard just to hear their recollection of the facts.

    International arbitration is influenced by the domestic arbitration practice under which witnesses tend to be treated as in court proceedings (the party must file a list of questions and of witnesses and seek leave to hear them), their examination being conducted by the arbitral tribunal, which may allow counsel to put some questions to them. Some arbitrators are more liberal but the parties have no right to examine and cross-examine witnesses as in common law proceedings. In international arbitrations in Italy, examination and cross-examination are much more likely to proceed under common law rules, but if the arbitral tribunal is made of Italian arbitrators, it does not always entirely forget the rules of Italian RCP on evidence.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    The Italian court of the venue of the arbitral proceedings may be asked by the arbitral tribunal (sec. 816ter RCP) to summon witnesses to appear before it.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    Documentary evidence is usually left by the Italian RCP to the discretion of each party. Full discretion and contempt in case of its breach are not provided for. Orders to produce a specific document may be made if the existence of the document, its possession by the other side and its contents and relevance are established.

    In international arbitrations, if Italian procedural law does not apply, applications for wide, if not unlimited, discovery orders will be entertained, but Italian arbitrators are not much accustomed to this.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    It is not mandatory to have a final hearing on the merits after the evidentiary stage, but it is very frequent. However, the parties may comment onthe evidence orally or by filing a post-evidentiary final pleading (or a pleading and a rebuttal).

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    Even if Italy is selected as the seat of the arbitration, some hearings and meetings may be conducted elsewhere. Nevertheless it is suggested that the seat of the arbitration may not be just a façade. It is further submitted that the award must be made at the seat of the arbitration if the parties have so requested. If not, the award is made where the arbitrators have (or the last arbitrator has) signed it, and it may not be treated to have been made at the seat of the arbitration, if that was not the case.

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    The arbitral tribunal can decide by a majority, provided that the award states that the arbitrator who has not signed has participated in the decision and has been unable or unwilling to sign.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    The arbitral tribunal may issue a declaratory award or make orders. It is debatable whether it may create or amend or terminate a legal relationship, even if the parties have not so expressly provided. In Rossi et al. v. Cheriv (Court of Cassation, March 15, no. 3045 (1995), Giust. Civ. Mass. 1995, 616) this was held to be within the arbitral tribunal's authority, even in the absence of such express provision.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    In domestic arbitration, dissenting opinions are tolerated but frequently disliked. They are less disliked in international arbitration, but they are not very frequent. It is more frequent that the minority arbitrator confines himself or herself to see that it be stated that the decision has been made by a majority or that he or she dissents.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    The legal and formal requirements for a valid and enforceable award are that the decision be decided with the personal attendance of all the arbitrators (if so requested by one of them) or otherwise by teleconference or videoconference. The award must be made in writing and contain:

    • the names of the arbitrators;
    • the seat of the proceedings;
    • the mention of the parties;
    • the arbitration agreement and the parties’ requests for relief;
    • the concise grounds;
    • its findings and or order;
    • the signature of all or at least of the majority of the arbitrators, stating in this event that the decision has been made with the participation of all the arbitrators and that those who have not signed, were unable or unwilling to do so; and
    • the date of its adoption by the arbitrators.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    The parties may, prior to the acceptance by the arbitrators, agree upon the date by which the award is to be made.

    In the absence of their agreement, they must decide within 240 days of the acceptance.

    Such time frame may be extended:

    a) by written statement to the arbitrators, signed by all the parties;

    b) by the president of the Court of the venue of the arbitration (or if not yet determined, of the place where the arbitration agreement has been entered into upon a reasoned application by a party, or by the arbitrator, after hearing the parties, such extension being possible only before the expiry of the deadline).

    If the parties have not agreed otherwise, the deadline may be extended by 180 days upon each of the following events (only once for each class of events:

    1) if evidence is to be heard;

    2) if an expert is appointed;

    3) if an interim or a partial award is issued; or

    4) if the members of the arbitral tribunal or the sole arbitrator are changed.

    The time limit to make the award is stayed if the arbitral proceedings are stayed. In that event, if proceedings are resumed the remaining time available, if lower than 90 days, is extended to 90 days.

    The award may be corrected upon application made by a party within one year of receipt of notice of the filing by the arbitrator, who may also add to the award.

    The arbitrators must decide on it within 6 months. If they do not, the competent state court will decide.

    If the award has been filed with that state court, the latter will decide.

    If a state court has been seised with the challenge of award or to enforce it, it may decide on it.

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    The rule is that “costs follow the event”. Costs normally include reasonable fees incurred, as well as costs for clerical work and disbursements. If a party has costs that are in excess of what is reasonable, or has hired two or more law firms, without an absolute need for that, it might not recover such costs.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    Pre-award interest on the principal claim is due. If Italian substantive law applies, compound interest is allowed only from the request for arbitration or from the filing of the cross-claim or based on a specific agreement, provided that interest has been due for at least six months.

    Interest continues to mature from the time the award is made to payment. The legal rate in Italy is 1.5 per cent per year as of January 1, 2011. On commercial transactions, late payment involves the duty to pay default interest at a special rate, which from January 1 to June 30, 2011 is 8 per cent.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    The grounds on which an award may be challenged by one of the parties before the Court of Appeal to be set aside are:

    • lack of validity of the arbitration agreement;
    • an arbitrator or arbitrators were not properly appointed;
    • the award was rendered by someone who could not be appointed as arbitrator;
    • the award exceeded its scope under the arbitration agreement (provided that the excess of the other party’s claim has been opposed during the arbitration) or the award has decided on the merits, even when the merits could not be decided;
    • the award gave no reasons, findings or orders, and was not signed by the arbitrator (or by the majority stating that it was decided with all of them in attendance and that those who did not sign it were unable or unwilling to sign it).
    • the award was made after the expiry of its term, provided that the party (who challenges it) has contested that breach during the proceedings;
    • the formal requirements provided by the parties under the sanction of nullity have not been complied with;
    • the award conflicts with a previous final award, or with a final judgment, filed in the arbitral proceedings;
    • due process was not observed;
    • the award did not decide the merits of the disputes, when it was asked to;
    • the findings or orders of the award are inconsistent;
    • the award did not decide a claim or opposition made by a party in line with the arbitration agreement.

    A party that has caused one of the above grounds for challenge or has waived it, or has not opposed it during the proceedings, may not challenge the award on this ground.

    Challenges for error on a point of substantive law is admitted only if so provided by the parties or by a statutory provision. Challenge for breach of public policy is always admitted.

    If a part of the award is affected by a ground for nullity and it may be severed from the other parts of it, the latter are not set aside.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    The award may be the object of two other challenges: set-aside and challenge by a third party.

    Third-party challenges are considered under question 9.

    A party may ask that an award be set aside if the award is the result of fraud by one of the parties; if the award was based on evidence that has subsequently been declared to be false, or was declared to be false before the award, which fact a party has ignored; if, after the award, decisive documents have come to light, which a party could not produce earlier due to force majeure or the conduct of the opposing party; or if the award is the result of fraud by the arbitrator, established by a final judgment.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    A party may waive challenges for nullity of the award only after the award is made.

    An award may be the object of set-aside proceedings even if that party has waived such a challenge.

    A third party may waive the third-party opposition to an award after the award is made.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    Section 840 provides that a foreign award is neither registered nor granted enforceability if it is not yet binding on the parties, or has been set aside or stayed by a court of the state in which or under the law of which it was made.

    If the applicant for registration or enforceability applies under the New York Convention, the Court may dismiss the application.

    If the award was made in Italy and has been declared null here or set aside, it may not be enforced.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    The requirement of awards under the New York Convention to be in writing is subject to attacks, but - in the absence of legislation - the in-writing requirement is prevailing.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    A defence of state or foreign immunity may be successfully raised at the enforcement stage, against attachments on real estate or assets that are used by that state, or by an agency or instrumentality of that state, for its public purposes. It is disputed whether as to moneys or bank accounts the burden of proof of such immunity lies on the alleged creditors or the state.

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    Italian law makes no express provisions on confidentiality of arbitral proceedings.

    Absolute confidentiality cannot be asserted and does not cover, under the rules of privacy or other general principles, the very existence of the arbitral proceedings.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    It is arguable whether some evidence may be covered by confidentiality. This may depend on the circumstances. Except in special circumstances the authors are of the opinion that pleadings in general are not covered by confidentiality.

    Subject to this, they may be relied on in any other proceedings.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    The Rules of Conduct of the Italian Bar apply to counsel acting in arbitrations.

    Arbitrators should aspire to conduct themselves like judges.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    There are no particular expectations or assumptions of which counsel or an arbitrator participating in an international arbitration seated in Italy should be aware, except that if the parties have selected international and not domestic arbitration, the proceedings must not be conducted as if they were totally domestic proceedings and that it should be checked before their appointment that the arbitrators do not have this tendency.

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