Originially from: World Arbitration and Mediation Review (WAMR) 

The Enforceability of Italian Arbitration Awards Abroad
by
Piero Bernardini
Chair, Arbitration Law, LUISS-Guido Carli University, Rome
In Italy, a debate has emerged over the nature of an arbitral award. This
debate has been animated by the position recently taken by the Italian
Supreme Court in favor of the contractual nature of the award and by that
of the Italian Constitutional Court holding that the arbitral award is
judicial in nature because “it is potentially fungible with that of the organs
of the jurisdiction.”
Commentators have questioned whether the debate undermines the
enforceability of Italian arbitration awards abroad under the New York
Arbitration Convention. What constitutes an “arbitral award” for the
purposes of the Convention is established on the basis of Articles I and
V(1)(e) of the Convention. These provisions do not require that the award,
in order to be enforceable abroad, be jurisdictional in nature in the legal
system in which it was rendered but merely that it be “binding” on the
parties. Thus, the jurisdictional or contractual nature of an arbitral award
according to the concepts of the country of origin has no bearing
whatsoever on the question of whether the arbitrators’ decision may be
considered as an “arbitral award” for the purpose of Article I of the
Convention and, accordingly, for its recognition and enforcement under
the Convention.
It is worth recalling that, based on the foregoing considerations, the
Italian Supreme Court held that the New York Arbitration Convention was
applicable to an award rendered in an “arbitrato irrituale,” which is
undoubtedly contractual in nature. It is well known that this position was
rejected by the German Supreme Court, which held in effect in 1981 that a
decision rendered in “arbitrato irrituale” could not be recognized and
enforced under the New York Arbitration Convention because the award
could be given more extensive effect abroad than in the country of origin.
In Italy, a decision rendered under an “arbitrato irrituale” could be
enforced as an arbitral award but only by means of a contract action. The
German position, however, even assuming that it is consistent with the
nature of an Italian “lodo irrituale,” would in no circumstance be justified