Originally from American Review of International Arbitration - ARIA

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The distinction in Italian law between different forms of arbitration has led to questions about the enforceability of certain awards under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention” or the “Convention”).1 Specifically, the uncertainty arises when the victorious party to an arbitrate irrituale, or informal arbitration, attempts to enforce the lodo, or award, in a foreign country. Recently, the United States District Court for the Southern District of New York, in I. Spier v. Calzaturificio Tecnica S.p.A. (hereinafter “Spier v. Tecnica”), twice put off answering the question of whether the lodo irrituale, or informal arbitral award, should be considered enforceable under the Convention.2 But the Court may have yet another chance to decide that issue, depending on the outcome of an appeal of the award in Italy on other grounds.

This note argues that the award resulting from an arbitrate irrituale should become enforceable under the New York Convention only after it is given the status of a judgment in the Italian courts, but that once it has attained this status it should be considered an arbitral award outside of Italy, and may be enforced as such. Part One will describe the conflict and procedural history behind the Spier v. Tecnica case. Part Two will examine the necessary background law of the New York Convention and draw the distinction between different types of arbitration under the Italian Code of Civil Procedure. Part Three will describe the attempted solutions to the issue that courts and commentators have offered. Part Four will expand on the alternate proposal offered above and address possible criticisms.