Proceedings for the Recognition and Enforcement of Foreign Judgments and Instruments: New Italian Rules
By Antonio Leandro
Introduction
Legislative Decree No. 149/2022 has been in force since 18 October. It implements Delegated Law No. 206/2021 concerning the efficiency of civil proceedings, the reform of alternative dispute resolution mechanisms, and urgent measures aimed at rationalising procedures relating to personal and family rights, as well as enforcement proceedings.
Among the most relevant changes is Article 24, which addresses proceedings concerning the effectiveness in Italy of foreign judgments. The provision also covers authentic instruments, court settlements and out-of-court agreements.
Article 24 amends Legislative Decree No. 150/2011 by introducing Article 30-bis, which identifies the domestic procedures applicable to the recognition and enforcement of decisions governed by EU law or by international conventions binding on Italy.
EU instruments in the field of judicial cooperation in civil and commercial matters generally require Member States to recognise decisions issued in other Member States automatically. As regards enforceability, some instruments require a prior declaration of enforceability, while others do not.
Italian private international law, primarily contained in Law No. 218/1995 and applicable where EU instruments or international conventions do not apply, distinguishes between recognition and enforcement of foreign judgments. Recognition is automatic, while enforcement requires a prior exequatur procedure confirming that the requirements for recognition are met.
The new Article 30-bis clarifies the procedure to be followed in order to give effect to foreign decisions, identifying when adversarial proceedings are required and referring such proceedings to the simplified cognisance procedure under Articles 281-decies et seq. of the Italian Code of Civil Procedure.
Proceedings Under EU Instruments
Proceedings governed by EU instruments may take place either in chambers without adversarial proceedings or through the simplified cognisance procedure, depending on the requirements of the relevant instrument.
The first route applies to applications seeking a declaration of enforceability or a principal determination that the conditions for recognition are met. Relevant EU instruments include, among others, Regulation (EC) No. 2201/2003, Regulation (EC) No. 4/2009, Regulation (EU) 2016/1103, Regulation (EU) 2016/1104 and Regulation (EU) No. 650/2012.
Appeals against orders issued in chambers are brought under the simplified cognisance procedure, which also applies to principal claims seeking refusal of recognition.
For EU instruments under which enforcement takes place without a prior declaration of enforceability, Article 30-bis provides that applications for refusal of recognition or enforcement, as well as applications seeking confirmation that no grounds for refusal exist, are to be handled under the simplified cognisance procedure.
These instruments include, among others, Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Regulation (EU) No. 606/2013 on mutual recognition of protection measures in civil matters, Regulation (EU) 2015/848 on insolvency proceedings and Regulation (EU) 2019/1111 on matrimonial matters, parental responsibility and international child abduction.
Proceedings Under International Conventions and Territorial Jurisdiction
Exequatur proceedings and principal proceedings concerning the positive or negative assessment of recognition requirements under international conventions to which Italy is a party will follow the simplified cognisance procedure, unless the applicable convention provides otherwise.
The competent court for proceedings under Article 30-bis is generally the Court of Appeal, except for proceedings based on Regulations (EU) No. 1215/2012, 606/2013, 2015/848 and 2019/1111, for which jurisdiction is usually assigned to the ordinary courts.
Territorial jurisdiction is determined according to the criteria set out in the relevant EU or international instrument or, failing that, by Article 30 of Legislative Decree No. 150/2011, which refers to the place where the measure is to be enforced. Decisions of the Court of Appeal may be appealed before the Court of Cassation on the grounds provided by Article 360 of the Code of Civil Procedure.
Foreign Authentic Instruments, Court Settlements and Out-of-Court Agreements
Article 30-bis also applies to proceedings concerning the effectiveness of authentic instruments, court settlements and out-of-court agreements, within the limits and under the conditions laid down by EU law and international conventions.
This reflects the scope of several EU and international instruments that regulate the effectiveness not only of judicial decisions, but also of other acts and agreements capable of producing legal effects across borders.
The reference to EU law goes beyond the regulations expressly mentioned in the provision. However, careful analysis is required in each case to determine whether a specific instrument falls within the scope of Article 30-bis.
For example, with regard to insolvency proceedings and preventive restructuring frameworks, it remains necessary to assess whether Article 30-bis may apply to measures adopted by Member States under Directive (EU) 2019/1023 that do not fall within Regulation (EU) 2015/848 or, potentially, Regulation (EU) 1215/2012.
Conversely, since Article 30-bis also applies in relation to international conventions, it may potentially be relevant to English court orders approving Schemes of Arrangement, provided that such measures fall within the scope of the 1964 bilateral convention between Italy and the United Kingdom on the reciprocal recognition and enforcement of judgments in civil and commercial matters.
All issues arising from the introduction of Article 30-bis of Legislative Decree No. 150/2011 therefore require careful and case-specific legal analysis.
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