Procedure for the recognition and enforcement of foreign arbitral awards
It is a controversial question in doctrine and jurisprudence whether the decree of recognition of the foreign arbitral award issued pursuant to Article 839 of the Italian Civil Procedure Code (c.p.c.) attributes enforceable effectiveness to the award, or whether the latter, in order to become enforceable, must await the expiry of the deadline for objection or, if the objection is proposed, the ruling of rejection pursuant to Article 840 c.p.c.
The Court of Appeal of Milan in a recent judgment (Section I – 07/10/2019) adopts the last-mentioned solution in the procedure for recognition and enforcement of the award issued in Moscow by the International Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation.
As it is known, in Italy the foreign arbitration award has no effect unless the procedure pursuant to Article 839 of the Civil Procedure Code, which provides for an action by the party concerned to the President of the Court of Appeal in whose district the other party resides, has been previously carried out. The nature of the decree recognizing the foreign award is controversial and must be analyzed with reference to the concepts of recognition and enforceability which differ significantly, since the first concerns the binding nature of the award, while the second refers to the possibility of forcible execution.
“It is indeed necessary to establish – note the judges of the Court of Appeal – whether, by virtue of the decree issued pursuant to Article 839 c.p.c., the award is immediately enforceable, or whether, to this end, the ruling rejecting the objection (if proposed) or, alternatively, the useless expiry of the time limit for proposing it should be expected. In the latter case, the relative declaration of enforceability will be governed by the application of Article 647 c.p.c. by virtue of the reference contained in Article 840, paragraph 2 c.p.c. to Articles 645 et seq. c.p.c., insofar as they are compatible”.
It should be remembered that there are strong arguments in favour of both approaches.
In favour of immediate enforceability speak both the heading of Article 839 c.p.c., in which reference is made to recognition and enforcement; the idea, deriving from a broader vision of the system, according to which the legislator would have designed the presidential phase as self-sufficient; and finally, the need to avoid foreign awards being subject to a more onerous regime than domestic ones (in fact, the similar procedure pursuant to Article 825 c.p.c. has the purpose to attribute enforceability to the internal award).
On the contrary, against the immediate enforceability of the decree, reference is made to the principle of the exhaustivity of enforceable titles pursuant to Article 474 c.p.c., the need to give the respondent the opportunity to state the grounds for objection to the enforceability of the award (which are not detectable ex officio), as well as the absence of reference to Article 642 c.p.c. in the subsequent Article 840, paragraph 2 c.p.c.
Although the Court of Appeal of Milan did not examine the matter in depth, in the ruling in question, it stated that “in the absence of an express regulatory provision and taking into account the letter of paragraph 4 of Article 839 c.p.c. – which is expressed only in terms of effectiveness and not also in terms of enforceability – the decree issued by the President of the Court must be understood as limited to the mere recognition of the foreign award (if the conditions are met) without, however, conferring on it, with such recognition, the immediate enforceability ope legis”.
The solution adopted in this judgment therefore seems to be aimed at protecting a general right to be heard of the party, who must be allowed to present his reasons for objecting, even before being enforced under the foreign award. In this sense, the ratio deserves to be supported, without however overlooking the opposite interpretations already mentioned above, that cannot be considered obsolete.
Therefore, a legislative intervention aimed at clarifying the ambiguity of interpretation of the provision in question would be preferable.