Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
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Results: 4 Answers
Enforcement of Foreign Judgments
1.
Legal and judicial framework
1.1
Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?
 
Italy
The recognition and enforcement of EU judgments in all civil and commercial matters is covered by Regulation 1215/2012 (the ‘Brussels I Recast Regulation’).

Other EU instruments apply to the recognition and enforcement of EU judgments in specific matters, as follows:

  • Regulation (EC) 2201/2003 (the ‘Brussels II Recast Regulation’), for judgments in matrimonial matters and matters of parental responsibility;
  • Regulation (EU) 848/2015 for judgments opening insolvency proceedings;
  • Regulation (EC) 805/2004, creating a European enforcement order;
  • Regulation (EC) 1896/2006, creating a European order for payment;
  • Regulation (EC) 861/2007, establishing a European small claims procedure;
  • Regulation (EC) 4/2009, for decisions in matters relating to maintenance obligations;
  • Regulation (EU) 650/2012, for decisions in matters of succession;
  • Regulation (EU) 1103/2016, implementing enhanced cooperation in the area of, among others, the recognition and enforcement of decisions relating to matrimonial property regimes; and
  • Regulation (EU) 1104/2016, implementing enhanced cooperation in the area of, among others, the recognition and enforcement of decisions in matters of the property consequences of registered partnerships.

The recognition and enforcement of non-EU judgments is governed by Law 218 of 31 May 1995.

Once the EU or non-EU judgment has been recognised as enforceable, the provisions on enforcement proceedings set out in the Italian Code of Civil Procedure will apply.

This Q&A addresses only the rules set out under the Brussels I Recast Regulation and Law 218/1995.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
1.2
Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?
 
Italy
The main multilateral instruments with EU states are:

  • the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters; and
  • the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, entered into between the European Union, Denmark, Iceland, Norway and Switzerland.

The main bilateral instruments with non-EU member states are:

  • the Italy-Argentina Convention on judicial assistance and the recognition and enforcement of judgments in civil matters of 9 December 1987;
  • the Italy-Brazil Treaty on judicial assistance and the recognition and enforcement of judgments in civil matters of 17 October 1989;
  • the Italy-China Treaty on judicial assistance in civil matters of 20 May 1991;
  • the Italy-Egypt Convention on the recognition and enforcement of judgments in civil and commercial matters and on the status of natural persons of 3 December 1977;
  • the Italy-Lebanon Convention on mutual judicial assistance in civil, commercial and criminal matters, the enforcement of judgments and arbitral awards and extradition of 10 July 1970;
  • the Italy-Morocco Convention on mutual judicial assistance, the enforcement of judgments and extradition of 12 February 1971;
  • the Italy-Turkey Convention on judicial protection, mutual assistance of judicial civil and criminal authorities and the enforcement of judicial decisions of 10 August 1926;
  • the Italy-Tunisia Convention on judicial assistance in civil, commercial and criminal matters, the recognition and enforcement of judgments and awards and extradition of 15 November 1967;
  • the Italy-Kuwait Agreement on judicial cooperation, the recognition and the enforcement of judgments in civil matters of 11 December 2002;
  • the Italy-Moldova Agreement on judicial assistance and the recognition and enforcement of judgments in civil matters of 7 December 2006; and
  • the Italy-Russia Convention on judicial assistance in civil matters of 25 January 1979.
For more information about this answer please contact: Matilde Rota from Studio Legale Withers
1.3
Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?
 
Italy
The recognition and enforcement of EU judgments is automatic. However, a party may challenge the recognition and enforcement of an EU judgment by filing an application to the court of first instance.

For recognition and enforcement of a non-EU judgment, an application must be filed with the court of appeal of the place where the judgment is to be enforced.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
2.
Requirements for enforceability
2.1
What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?
 
Italy
The judgments that are generally recognised and enforced in Italy are declaratory, constitutive, monetary and non-monetary, default and specific performance judgments. They may be in the form of decrees, orders or decisions.

No specific type of judgment is precluded from enforcement. However, any judgment should be issued in accordance with the Italian Code of Civil Procedure and should not be contrary to public policy.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
2.2
Must a foreign judgment be final and binding before it can be enforced?
 
Italy
EU judgments rendered in a member state which are enforceable in that member state shall be enforceable in another member state (Italy) without any declaration of enforceability being required. They need not be final and binding.

Non-EU judgments must be final and binding.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
2.3
Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?
 
Italy
EU judgments subject to appeal are enforceable in Italy if they are enforceable under the law of the member state of origin.

The court before which a judgment rendered in another member state is invoked may suspend the proceedings in whole or in part if the judgment is challenged in the member state of origin.

Non-EU judgments cannot be recognised in Italy unless they are final and binding.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
2.4
What is the limitation period for making an application for recognition and enforcement?
 
Italy
There is no specific provision on the limitation period within which an application for recognition and enforcement should be made.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.
Recognition and enforcement process
3.1
Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?
 
Italy
EU judgments are recognised without the need for any procedure or declaration of enforceability.

For the purposes of enforcement, an application must be filed before the competent Italian court pursuant to Article 42 of the Brussels I Recast Regulation.

Non-EU judgments are recognised without the need for any procedure. However, to enforce the judgment, an application must be filed with the Italian court of appeal of the place of enforcement.

As regards the legal effects, recognition confers on the foreign judgment the same authority and effectiveness as in the state of origin. The purpose of the enforcement procedure is to allow the applicant to obtain what it is entitled to pursuant to that judgment.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.2
What is the formal process for recognition and enforcement?
 
Italy
EU judgments are recognised without the need for any special procedure.

For the purposes of enforcement, the competent Italian court should be provided with a true copy of the judgment and a document issued pursuant to Article 53 of the Brussels I Recast Regulation certifying that the judgment is enforceable.

As regards non-EU judgments, an application must be filed with the court of appeal of the place of enforcement. The procedure is regulated pursuant to Articles 702-bis and following of the Italian Code of Civil Procedure.

Upon receiving the application, the court of appeal will schedule the date of the hearing and give the defendant a deadline by which to file its defence.

Usually, only one hearing takes place during the course of the proceedings before the court of appeal issues its judgment.

The judge will issue an order recognising the non-EU judgment and order that the Court Registry declare the non-EU judgment enforceable.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.3
What documents are required in support of an application for recognition and enforcement?
 
Italy
For the enforcement of EU judgments (Article 42(1) of the Brussels I Recast Regulation):

  • a true copy of the judgment; and
  • documentation certifying that the judgment is enforceable pursuant to Article 53 of the Brussels I Recast Regulation.

For the enforcement of a judgment ordering provisional, including protective, measures (Article 42(2) of the Brussels I Recast Regulation):

  • a true copy of the judgment;
  • documentation issued pursuant to Article 53 of the Brussels I Recast Regulation containing a description of the measure and certifying that:
    • the court had jurisdiction as regards the substance of the matter; and
    • the judgment is enforceable in the member state of origin; and
  • in case of ex parte measures, proof of service of the judgment.

For the enforcement of non-EU judgments:

  • a true copy of the judgment;
  • documentation certifying that the judgment is final and binding between the parties; and
  • a certified translation of the judgment and of the certificate.
For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.4
What fees are payable for recognition and enforcement?
 
Italy
EU judgments are directly recognised and enforceable in any other EU member state, with no need to pay fees in relation to special procedures.

With regard to the procedure for the recognition and enforcement of non-EU judgments, the fees are calculated pursuant to Italian Ministry Decree 55/2014 based on the monetary value of the case.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.5
Is the applicant required to provide security for costs?
 
Italy
No, the applicant is not required to provide security for costs.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.6
How long does it usually take to obtain a declaration of enforceability?
 
Italy
This depends on the workload of the Italian court before which the proceedings are pending and on any objections raised by the party against which enforcement is sought.

In any case, obtaining a declaration of enforceability usually takes between six and 12 months.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
3.7
Can the applicant seek injunctive relief while the process is ongoing?
 
Italy
In principle, it is possible to seek injunctive relief (Article 700 of the Italian Code of Civil Procedure) while the process is ongoing. Italian courts grant injunctive relief only if the applicant proves that:

  • it has a prima facie case; and
  • there is a risk that its rights may be compromised while the proceedings are pending.

However, it is unlikely that injunctive relief will be granted while the process is ongoing, as the debtor is already subject to restraints while the proceedings are pending.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
4.
Defences
4.1
On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?
 
Italy
The recognition and enforcement of EU judgments (issued in civil and commercial matters) in Italy may be challenged on the grounds set out in Article 45 of the Brussels I Recast Regulation.

The recognition and enforcement of non-EU judgments in Italy may be challenged if any of the following requirements set out under Article 64 of Law 218/1995 is not met:

  • The jurisdiction of the foreign court over the dispute was compliant with the jurisdiction rules of Italian law;
  • Service of the proceedings adhered to the laws of the state of origin and there was no infringement of the defendant’s right to a defence;
  • The parties appeared in court or default has been declared in accordance with the laws of the state of origin;
  • The judgment is final and binding in accordance with the laws of the state of origin;
  • The judgment is not contrary to a final and binding judgment issued by an Italian court;
  • No parallel proceedings were commenced before an Italian court with the same merits and between the same parties prior to the proceedings commenced in the state of origin; and
  • The effects of the judgment are not contrary to public policy.

Moreover, special provisions govern the recognition of:

  • non-EU judgments in matters concerning the capacity of persons, family relationships and personality rights (Article 65 of Law 218/1995); and
  • non-EU judgments issued in non-contentious jurisdiction proceedings (Article 66 of Law 218/1995).

Normally, the party seeking enforcement of the non-EU judgment will commence proceedings to seek a declaration that the above requirements are met. However, the other party may also commence proceedings to have recognition or enforcement refused on the basis that any of the above requirements is not satisfied.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
4.2
What is the limitation period for filing a challenge?
 
Italy
No limitation period is specified in either the Brussels I Recast Regulation for EU judgments or Law 218/1995 for non-EU judgments.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
4.3
Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?
 
Italy
In principle, it is possible to seek injunctive relief (Article 700 of the Italian Code of Civil Procedure) while the process is ongoing only if the applicant proves that:

  • it has a prima facie case; and
  • there is a risk that its rights may be compromised while the proceedings are pending.
For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.
Court analysis and decision
5.1
Will the court review service of process in the initial proceedings?
 
Italy
As regards EU judgments, defective service constitutes grounds to refuse enforcement of a default judgment (Article 45(1)(b) of the Brussels I Recast Regulation). Furthermore, for the purposes of enforcement of ex parte measures, the Brussels I Recast Regulation requires that the applicant provide proof of service, among other things (Article 42(2)(c)).

As regards non-EU judgments, the regularity of service of the proceedings is among the requirements for recognition and enforcement (Article 64(1)(b) of Law 218/1995).

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.2
Will the court review the jurisdiction of the foreign court in the initial proceedings?
 
Italy
As regards EU judgments, there is limited scope to review the jurisdiction of the foreign court under Article 45(1)(e) of the Brussels I Recast Regulation. Recognition of a judgment shall be refused if the judgment conflicts with certain rules on jurisdiction set out in the regulation itself.

As regards non-EU judgments, the court shall assess whether the foreign court had jurisdiction over the dispute in accordance with the rules governing jurisdiction set out in Italian law.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.3
Will the court review the foreign judgment for compliance with applicable law and public policy?
 
Italy
Both the Brussels I Recast Regulation (Article 45(1)(a)) and Law 218/1995 (Article 64(1)(g)) allow the court to assess the effects of recognition of a foreign judgment on public policy. However, as regards EU judgments, the court cannot review the case ruled on by the court of the state of origin.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.4
Will the court review the merits of the foreign judgment?
 
Italy
As regards EU judgments, the Brussels I Recast Regulation provides that under no circumstances may a judgment issued in a member state be reviewed as to its substance by the member state addressed (Brussels I Recast Regulation Article 52).

As regards non-EU judgments, Law 218/1995 contains no express prohibition against the court reviewing the merits. However, none of the requirements for recognition and enforcement set out in Article 64 requires the court to carry out a review in this respect.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.5
How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?
 
Italy
Under certain conditions, the fact that a foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties may be considered grounds for refusal of recognition, both under the Brussels I Recast Regulation (Articles 45(1)(c) and (d)) and under Law 218/1995 (if the previous judgment was rendered by an Italian court) (Article 64(1)(e)).

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.6
Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?
 
Italy
As regards EU judgments, it is questionable whether and to what extent the court can assess the grounds for refusal of recognition and enforcement set out in Article 45 on its own motion. In principle, since EU judgments are recognised and enforced without the need for exequatur, this question should be answered in the negative; although some believe that, nonetheless, the Italian courts can refuse to recognise or enforce a judgment based on the public policy limit on their own motion.

As regards non-EU judgments, it is understood that the court may also assess on its own motion whether the requirements for recognition and enforcement of a foreign judgment set out in Article 64 of Law 218/1995 have been satisfied. According to some scholars, this does not hold true with regard to the requirement relating to lack of jurisdiction set out in Article 64(1)(a).

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.7
Is partial recognition and enforcement possible?
 
Italy
Yes, an EU or non-EU judgment may be partially recognised or enforced where it has been issued in respect of several matters and enforcement cannot be authorised for all of them.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
5.8
How will the court deal with cost issues (eg, interest, court costs, currency issues)?
 
Italy
In the Italian legal system:

  • generally, interest is awarded in the final judgment at the rate and from the date specified therein;
  • with regard to costs, the ‘loser pays’ principle generally applies. However, in certain circumstances, the court may decide on a different allocation of costs (Article 92 of the Italian Code of Civil Procedure); and
  • if the sum due is determined in a currency that is not the legal tender in the state addressed, the debtor can pay in the legal currency at the exchange rate (Article 1278 of the Italian Civil Code).

It is worth considering that:

  • generally, court fees are calculated on an ad valorem basis according to the monetary value of the claim. However, for some matters, court fees are fixed. Court fees are determined in accordance with a scale of costs updated by the legislature from time to time (DPR 115 of 30 May 2002); and
  • some specific matters are exempt from court fees.
For more information about this answer please contact: Matilde Rota from Studio Legale Withers
6.
Appeals
6.1
Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?
 
Italy
Decisions of the Italian ordinary courts in relation to the enforcement of foreign judgments can be appealed before the court of appeal. The decision of the court of appeal can be challenged before the Supreme Court.

As regards non-EU judgments, decisions of the court of appeal in relation to the recognition and enforcement of foreign judgments can be challenged before the Supreme Court.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
6.2
Can the applicant seek injunctive relief while the appeal is pending?
 
Italy
In principle, injunctive relief pursuant to Article 700 of the Italian Code of Civil Procedure can be sought by the party concerned whenever no other specific interim or provisional measures apply. It is possible to seek injunctive relief only if the applicant can prove that:

  • it has a prima facie case; and
  • there is a risk that its rights may be compromised while the proceedings are pending.
For more information about this answer please contact: Matilde Rota from Studio Legale Withers
7.
Enforcing the foreign judgment
7.1
Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?
 
Italy
In the Italian legal system, once a declaration of enforceability has been granted, the creditor may start enforcement proceedings in accordance with Articles 474 and following of the Italian Code of Civil Procedure.

The creditor begins by serving on the debtor an enforceable copy of the judgment, along with a writ of payment.

Ten days after service of the writ of payment, the creditor may commence enforcement proceedings against the debtor before the competent court.

Enforcement proceedings start with the attachment of the debtor’s assets in the 90 days following service of the writ of payment. A bailiff is usually involved in this activity.

The following types of assets can be attached:

  • movable property (including shares and other forms of equity participation in an enterprise);
  • immovable property;
  • receivables; and
  • movable property of the debtor kept by third parties.

The formalities to attach and expropriate the debtor’s assets may vary depending on the type of assets at stake. In broad terms, following attachment of the debtor’s assets, a complex procedure conducted by the court leads to the debtor’s assets being sold or assigned to the creditor and the proceeds being distributed. Other creditors may join the proceedings. The debtor may appear before the court and challenge the regularity of the procedure.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
7.2
Can the foreign judgment be enforced against third parties?
 
Italy
In principle (and with limited exceptions), a judgment can be enforced only against the losing party and that party’s heirs or successors.

However, some types of enforcement proceedings involve third parties, such as expropriation of the debtor’s receivables and expropriation of jointly owned property.

Moreover, the Italian Code of Civil Procedure provides for a special procedure to attach and expropriate a third party’s assets against the respective owner. This is the case, for example, where a mortgage has been given to secure another person’s debt or where the creditor has successfully claimed that a transaction between the debtor and a third party has been declared ineffective.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
8.
Trends and predictions
8.1
How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
 
Italy
As regards non-EU judgments, other than a few amendments in 2013 and 2017, Law 218/1995 has remained unchanged over the years.

Some scholars have advocated for reform of the provisions on recognition and enforcement of non-EU judgments, to make them more consistent with the European instruments. Specifically, they argue that reforms should address issues such as:

  • the express prohibition against a review of the merits of foreign judgments; and
  • the recognition and enforcement of interim or provisional measures.

However, a reform of Law 218/1995 does not seem to be on the agenda of the Italian legislature.

Conversely, there have been some relatively recent significant court cases concerning the recognition and enforcement of foreign judgments.

In Judgment 16601 of 5 July 2017, the Italian Supreme Court resolved the debated issue of the enforceability in Italy of foreign judgments ordering the losing party to pay punitive damages. Such judgments raised concerns regarding their compatibility with public policy in Italy and the case law on the issue was divided. The Supreme Court found that punitive damages are not per se contrary to public policy, and that if certain conditions are met, a foreign judgment ordering a party to pay punitive damages can be declared enforceable in Italy.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers
9.
Tips and traps
9.1
What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?
 
Italy
The enforcement of foreign and domestic judgments in Italy can be tricky. Difficulties in locating the debtor’s assets, a complex procedural framework and lengthy enforcement proceedings are the most common sticking points. While the most appropriate actions to ensure smooth enforcement should be assessed on a case-by-case basis, here are a few tips.

A good rule of thumb is to plan ahead. It is advisable to assess where the debtor’s assets are located before filing the lawsuit.

If a creditor has reasonable grounds to believe that the debtor could jeopardise enforcement of a judgment, it may seek interim or conservatory measures, regardless of which court has jurisdiction on the merits.

Furthermore, Italian law provides for remedies allowing a creditor to have an act declared ineffective insofar as it was carried out by a debtor with the purpose of diminishing its assets by passing them on to a third party. Articles 2901 and 2929-bis of the Italian Civil Code offer remedies in this respect.

As regards the search for the debtor’s attachable assets, a useful tool has been provided by Article 496-bis of the Italian Code of Civil Procedure, which allows a creditor to access the databases of public authorities in order to search for the debtor’s assets.

For more information about this answer please contact: Matilde Rota from Studio Legale Withers