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THE RECENT AMENDMENTS TO ITALIAN ARBITRATION LEGISLATION: AN OPPORTUNITY TO INCREASE ITALY’S APPEAL IN THE INTERNATIONAL ARBITRATION MARKET

marketude — Wed, 22 Dec 2021 10:00:49 +0000

On 25 November 2021 the Italian Chamber of Deputies approved the Enabling Act for the reform of the civil procedural law, presented as part of the Italian National Recovery and Resilience Plan (Piano Nazionale di Ripresa e Resilienza, NRRP)^[1]. The guiding principles and criteria contained in the Enabling Act shall be implemented by the Italian government, in the form of Legislative Decrees, within one year from the entry into force of the Act. Notably, within the Enabling Act, the Parliament enabled the Government to amend some provisions of the Italian Arbitration legislation, and provided its guiding principles on which the amendments shall be based. Even though the Enabling Act is not a trigger for a comprehensive reform of the Italian Arbitration Law, still its provisions are expected to result in substantive improvements of the legislation. Here follows a short summary of the main amendments to the arbitration legislation that the Government is enabled to adopt, provided under Article 1 Par. 15 of the Enabling Act a) Increase the guarantee of impartiality and independence of the arbitrators Within the Italian legal framework, arbitration is primarily regulated by provisions of the Italian Code of Civil Procedure (“CPC”), namely Artt. 806-840. Within the text of those articles, there is no express reference to the word impartiality (“imparzialità”) and only once the text alludes to the arbitrator’s duty not to have its independence (“indipendenza”) compromised. Indeed, within the text of the law, the topic is addressed under Art. 815 of the CPC, which enumerates the reasons for which an arbitrator may be challenged. Those being, inter alia, (i) if the arbitrator does not have the qualifications expressly agreed by the parties; (ii) if the arbitrator or an entity, association or company of which the arbitrator is a director, has an interest in the case; (iii) if the arbitrator or their spouse is a relative up to the fourth degree or a cohabitant or a habitual table-companion of a party, one of its legal representatives or counsel; (iv) if the arbitrator or their spouse has a pending suit against or a serious enmity to one of the parties, one of its legal representatives or counsel; (v) if the arbitrator is linked to one of the parties, to a company controlled by that party, to its controlling entity or to a company subject to common control by a subordinate labour relationship or by a continuous consulting relationship or by a relationship for the performance of remunerated activity or by other relationships of a patrimonial or associative nature which might affect their independence; (vi) if the arbitrator is a guardian or a curator of one of the parties; or (vii) if the arbitrator has given advice, assistance or acted as legal counsel to one of the parties in a prior phase of the same case or has testified as a witness. That does not mean, however, that arbitrator in Italy would be exempted from complying with their duties of impartiality and independence, as those are in any case often provided by the arbitration rules to which the arbitrator would also be subject, in case of administered arbitrations. For instance, the Camera Arbitrale di Milano (“CAM”) Arbitration Rules provide in their Art. 20 an obligation upon the arbitrators to disclose the events that may affect their impartiality of independence. Likewise, Art. 11 of the International Chamber of Commerce (“ICC”) Arbitration Rules establishes that “[e]very arbitrator must be and remain impartial and independent of the parties involved in the arbitration”. To further clarify the issue, the amendment in question now proposes to strengthen the guarantees of impartiality and independence of the arbitrator by reintroducing not only the right of objection for reasons of convenience, but also the obligation of the arbitrators to issue, at the time of acceptance of the appointment, a declaration containing all the factual circumstances relevant to the above guarantees. In addition, the new addition also provides for the invalidity of an arbitrator’s acceptance in the event of omission of the declaration and, in particular, forfeiture if, at the time of accepting the appointment, the arbitrator has failed to declare the circumstances that, pursuant to Art. 815 of the CPC, can be invoked as grounds for objection. b) Rule on the enforceability of the decree of recognition of foreign arbitral awards in the Italian territory The Italian procedure for the recognition and enforcement of foreign arbitral awards reflects the 1958 New York Convention. Under Art. 839 of the CPC, a foreign award is recognized by way of a decree by the Court of Appeal, to be issued having confirmed the “formal regularity” of the award unless (i) the subject matter is not capable of determination by arbitration under Italian law; or (ii) the award contains provisions contrary to Italian public policy. The decree shall be served by the requesting party to the counterparty, which has the right to file opposition within 30 days from the date of the service. The filing of the opposition determines the rise of ordinary judicial proceedings before the Court of Appeal, only aimed at assessing the existence of any of the grounds for refusal of the recognition and enforcement of the award provided under Article 5 of the New York Convention, and replicated by Art. 840 CPC. The enforceability of the decree issued under Art. 839 CPC is debated by scholars and case-law. Someone argues that the decree is immediately enforceable since the date of its issuance, some others maintain that the enforceability should come only after the expiry of the date for filing opposition, or only if and when the opposition is rejected. In practice, this means that a party wishing to enforce a foreign arbitral award in Italy may be able to proceed with the enforcement in few weeks or after years of proceedings, only depending on the trend followed by the Court of Appeal where the case is pending. Finally, after years of debate and uncertainties, the Italian legislator addressed the matter in the Enabling Act. Expectedly, the Government will amend the current provisions of the CPC and expressly provide the immediate enforceability of the decree under Art. 839 CPC since the date of its issuance. This would be a great incentive to recognize and enforce foreign arbitral awards in Italy, as the requesting party would be put in the position to enforce its award in Italy in a relatively short period of time and even pending the term for the opposition against the decree under Art. 839 CPC. c) Allow arbitrators to issue interim relief when expressly allowed by the parties One of the particularities of arbitration in Italy has always been that, in accordance with Art. 818 of the CPC, arbitrators seating in Italy are prohibited to issue provisional or interim measures unless otherwise provided by law (which was the case, for instance, with corporate arbitrations where arbitrators do have the power to stay the effects of a corporate resolution disputed in the arbitration). While it is possible for those same arbitrators to grant interim protection by means of procedural orders, that did not reveal in to be enough to surmount the problem. That is because the lack of enforceability of said orders often meant that, were a party not to comply with the arbitral tribunal’s instructions voluntarily, the other party would still be constricted to bringing the issue before the Italian Courts. With the proposed change, arbitrators shall have the power to issue interim measures, although only in the event of the parties’ express intention to do so. According to the amendment, said intention has to be manifested in the arbitration agreement or in a subsequent written instrument. In such cases, the Italian courts should retain power only in cases where the request was made prior to the acceptance of the arbitrators. The change, of course, will require the need to revise the system in order to include also those interim measures in the hall of decisions subject Art. 829 of the CPC, which deals with grounds of nullity, as well as implementing measures allowing for the possibility to guarantee the enforceability of such decisions under the auspices of the Italian Courts. Still, the change is welcome as it would place Italy closer to the common international practice and to the most arbitration-friendly legislations. d) Introduce an express reference to the parties’ possibility to choose the applicable law to the dispute Art. 816 bis CPC provides, inter alia, that the parties may establish in the arbitration agreement, or in a separate document, the rules that the arbitrators must apply in the proceedings. However, so far, there is no reference in the Italian arbitration legislation to the possibility for the parties to decide the law applicable to the merits of their dispute, as it is provided in all the sets of arbitration rules established by the major arbitral institutions. The change proposed expressly provides that, in case a decision shall be reached by means of rules of law (as opposed to arbitration decided on the basis of equity), the parties shall have the power to indicate and choose the applicable law to the dispute. e) Reduce to six months the term for challenging arbitral awards in arbitrations seated in Italy. Under Art. 828 CPC, the challenge against an arbitral award in Italy shall be ﬁled before the Court of Appeal where the arbitration has its seat within 90 days from the service the award. If no service has been made, challenge shall be ﬁled within one year from the date of the last signature of the award. It is worth to clarify that, under Italian law, there are limited grounds for setting aside an award, including for instance the invalidity of the arbitration agreement, the violation of due process in the arbitration, or the contradiction between the award and another award or judgement having res judicata effect. According to recent statistics soon to be published, the success rate of a challenge of arbitral award before the Italian Courts of Appeal is less than 10%. The Parliament requests the Government to reduce the one year-term to six months, in line with the term for filing appeals against domestic judgements. On top of its practical implications, this amendment would have also a symbolic purpose, as it would represent a clear statement in favour of the stability of the arbitral awards in the Italian legal system. g) Regulate the continuation of proceedings (so-called “translatio iudicii”) between arbitrations and court proceedings Under Italian CPC, if a case is brought before a judge who declares his lack of competence, each of the parties has the right to bring again the case before the competent court within a specific term, determining the continuation of the proceedings and preserving the substantial and procedural effects of the action. Under the Italian CPC, Art. 819-ter, the continuation of proceedings was not allowed in cases involving courts and arbitral tribunals. This provision was addressed by a decision from the Italian Constitutional Court (Decision No.223 dated 19 July 2013), which declared it in contrast with the principles of the Italian Constitution. After the ruling by the Constitutional Court, the issue was never addressed by the Italian legislator. With the Enabling Act, the Government is now expressly required to lay down specific rules governing the continuation of the proceedings between court proceedings and arbitrations. The continuation of proceedings has a practical relevance, as it preserves the rights of the party in cases when it would otherwise be time barred if it had to start the proceedings again. The introduction of a specific set of rules concerning court proceedings and arbitrations will represent a positive improvement in the Italian Arbitration law welcome by the practitioners. In addition to the above, the Enabling Act requires the Government to introduce some further amendments to the Arbitration law and to reorganize the arbitration-related provisions. The amendments include the transfer within the CPC of the provisions on arbitration in corporate matters, currently within the Legislative Decree No. 5/2003 (letter f), and the introduction of a specific provision stating that the appointments of arbitrators by national courts shall be guided by the principles of transparency, rotation and efficiency (letter h).

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[1] The NRRP is the plan presented by Italian government, envisaging several investments and a consistent reform package, to the European Union as one of the conditions for having access to the funds of the “Next Generation EU” programme, namely the € 750 billion package that the European Union negotiated in response to the pandemic crisis

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WHAT YOU NEED TO KNOW WHEN DRAFTING A LIMITATION OF LIABILITY CLAUSE

marketude — Mon, 13 Dec 2021 18:09:23 +0000

In an international Arbitration, it may happen that a party has to face claims or counterclaims for amounts even higher than the entire value of the contract from which the dispute originates. Indeed, in complex projects where various stakeholders are involved, a contractual breach from one party may have a “cascade” effect, exposing the other party to costs, damages and penalties that the latter may attempt to recover in arbitration. This scenario may have potentially disruptive impacts for a company. One of the most common ways to minimize such a risk in commercial contracts is to include clauses that exclude or restrict the liability of the parties in the event of breach. Those clauses are commonly referred to as “exclusion” or “limitation of liability” clauses. Put this way, this may sound far too simple. It shall be considered, however, that almost all national legal systems set limits to the possibility to exclude or reduce the liability for contractual breaches. Those limits are established by provisions that, in most of the cases, are mandatory in nature, and as such cannot be circumvented by the parties. It derives that, when drafting exclusion or limitation or liability clauses, the parties shall act carefully to avoid the risk that their clause turns out to be, in whole or in part, invalid, inapplicable and/or not enforceable. This article illustrates the types of exclusion/limitation of liability clauses that may be included in a contract and provides an example of such a clause in the field of construction. Furthermore, it provides a brief overview of the limits established by some national legislations, and gives some tips on what to pay attention to in the process of drafting and negotiating those clauses.

Types of exclusion / limitation of liability clauses

The clauses falling within the definition of exclusion / limitation of liability clauses may have various forms and pursue different interests. As a way of example, the parties may:

Exclude liability for certain events, qualified in advance as cases of “force majeure”;
Exclude liability in cases of “slight” negligence;
Exclude liability for certain categories of losses (e.g. indirect or consequential losses, loss of profit);
Limit liability to a certain amount, providing a “cap” to the amounts that may be due in case of breach, commonly expressed as a percentage of the overall contractual price.

The clauses described above can be adopted together: for instance, the parties may agree to exclude liability for specific events or categories, and, in addition, to provide a “cap” to the amount potentially due. The choice for a certain category of exclusion/limitation of liability clause heavily depends on the goals to be achieved, and the risks to be overcome. The vaguer is the wording used in the clause, the higher is the risk that disputes may arise as to the extent and the applicability of the clause, and this should be an incentive to be as clear and as detailed as possible in determining the scope of application of the clause. Generally, it is preferable to adopt a more realistic approach rather than to try to excessively extend the scope of the clause, bearing in mind that it is impossible to have a clause covering every potential clause of liability that may arise within a contractual relationship. Focusing on the clauses that put a “cap” on the amounts recoverable, irrespectively of how specific the parties are in their drafting, they should be aware that not each and every amount that can be claimed in an arbitration may fall within the scope of application of the clause. For instance, in a recent judgement the England and Wales High Court of Justice ruled that a clause limiting the aggregate liability of the contractor could not automatically limit also the amounts due to the employer as costs for completing the works after the termination. In this specific case, the court argued that the clause applied only to liabilities incurred as a result of breaches of contractual or tortious obligations, while the termination can originate also from other causes^[1]. More generally, there are often categories of losses and expenses not directly linked to a contractual breach, which are arguably encompassed within the “cap” that the parties may have agreed.

Example: the “limitation of liability” clause provided under the FIDIC Red Book

Limitation of liability clauses are widely used in the field of construction. A great contribution to the spread of those clauses in the construction contracts was given by the International Federation of Consulting Engineers (“FIDIC”)^[2], which included “limitation of liability” clauses since 1999 in three of its model contracts, and in particular in the FIDIC Red Book (for building and engineering works designed by the Employer)^[3]. The practice to agree on a limitation of liability clause in construction contracts, in most cases, derives from the need to overcome a practical problem, i.e. that the employers and contractors in the construction industry, otherwise, would not be in the position to fully insure their liabilities under the contract^[4]. This, however, is not the only purpose of those clauses. Limiting the potential liability of a party towards the other (and, most of all, fixing a cap to the amounts potentially due) is also meant to encourage the amicable settlement of possible disputes, since both parties know in advance that there is a limit to the amounts that they may expect to recover in litigation or arbitration^[5]. The limitation of liability clause included in the 2017 edition of the FIDIC Red Book reads as follows^[6]: “Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than under: (a) Sub-Clause 8.8 [Delay Damages]; (b) sub-paragraph (c) of Sub-Clause 13.3.1 [Variation by Instruction]; (c) Sub-Clause 15.7 [Payment after Termination for Employer’s Convenience]; (d) Sub-Clause 16.4 [Payment after Termination by Contractor]; (e) Sub-Clause 17.3 [Intellectual and Industrial Property Rights]; (f) the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor]; and (g) Sub-Clause 17.5 [Indemnities by Employer]. The total liability of the Contractor to the Employer under or in connection with the Contract, other than: (i) Under Sub-Clause 2.6 [Employer-Supplied Materials and Employer’s Equipment]; (ii) Under Sub-Clause 4.19 [Temporary Utilities]; (iii) Under Sub-Clause 17.3 [Intellectual and Industrial Property Rights]; and (iv) Under the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor], shall not exceed the sum stated in the Contract Data or (if a sum is not so stated) the Accepted Contract Amount. This Sub-Clause shall not limit liability in any case of fraud, gross negligence, deliberate default or reckless misconduct by the defaulting Party.” As it can be noticed, this is an example of a “complex” clause, which excludes the possibility to claim certain categories of losses, and at the same time limits the total liability of the contractor to a certain amount. In addition, it is the same clause that excludes its applicability for losses and damages incurred in connection with certain contractual provisions, such as those on intellectual property rights. The FIDIC model clause results from an analysis of the most frequent causes of construction disputes concerning clauses of that kind^[7]. In spite of the above, it is acknowledged by scholars that such clause is not “bullet proof” in every jurisdiction, as that its limitations may well be affected by the chosen applicable law, since the various national legal systems may have different limits, or impose higher or lower liability caps in specific circumstances^[8].

Statutory limits to party autonomy and tips for drafting a valid and enforceable exclusion / limitation of liability clause

The contractual exclusions or limitations of liability are a highly sensitive issue in almost every legal system. There are cases when the safeguard of the principle of party autonomy may conflict with public policy considerations – specifically, the need to protect the weaker party in the transaction and to avoid the risk that the parties to a contract may feel exempted from any duty of care in the performance of their obligations^[9]. This is the reason why the legislator, or in some cases the national case-law, feels compelled to “step in” and establish thresholds to the parties’ freedom. Each legal system has its own solutions for setting limits to the parties’ autonomy on this matter. Focusing on Italian law, the Civil Code provides that any agreement which excludes or prevents in advance the debtor’s liability in case of fraud or gross negligence is null and void. The same sanction is provided in case of any limitation of the debtor’s liability for acts in breach of public policy duties^[10]. It is widely accepted under Italian doctrine and case law that, in case of fraud or gross negligence, the nullity encompasses only the exclusion / limitation of liability clause, and not the entire contract. In addition, the nullity of the clause is “relative”, meaning that the clause continues to apply to all the other liabilities included within its scope and not deriving from fraud or gross negligence^[11]. As to the reference to the “public policy duties”, the prevailing view is that the provision is aimed at avoiding exclusions / limitations or liability in all cases when the parties’ obligations are relevant not only in the context of the specific transaction, but serve also general public interests. Consistently, case law has ruled that exclusions and limitations of liability are generally not admissible in contracts concerning medical treatments, or for passenger transport, or in cases when the party’s breach is relevant also as a violation of criminal or administrative law provisions^[12]. The solution adopted by the Italian legislator is not unique: there are various other legal systems that do not allow exclusions or limitations or liability when fraud or gross negligence comes into play. For instance, similar provisions can be found in the Spanish Civil Code and in the Swiss code of obligations^[13]. As an example of how the issue is deal with in common law jurisdiction, reference can be made to English law. In such jurisdiction, the general principle expressed in the leading case “Photo Production v Securicor Transport” is that “… Parties are free to agree to whatever exclusion or modification of all types of obligations as they please within the limits that the agreement must retain the legal characteristics of a contract …”^[14]. The freedom of the parties is, however, limited by statutory provisions. In particular, limits on the extent to which civil liability for breach of contract can be avoided are imposed by the “Unfair Contract Terms Act” of 1977, which applies to consumer contracts and those based on standard terms^[15]. According to such act, a person cannot exclude or restrict his liability for death or personal injury resulting from negligence, and, in case of other loss or damage, liability for negligence cannot be excluded except in so far as the term or notice satisfies the requirement of “reasonableness”^[16]. This is just an overview of the general rules concerning the statutory limits to exclusion / limitation of liability clauses, but it shall be borne in mind that typically the various legal systems have different statutory provisions for specific types of contracts, such as sales contracts or contracts for the carriage of goods. Moreover, in most legal systems, different (and typically stricter) limits are provided within contractual relationships where it is possible to identify in advance a “weak” party, e.g. standard forms of contracts and consumer contracts. In sum, the picture is extremely varied. For companies that negotiate with counterparties located in various legal systems it is utopian to have a “fit-for-all” clause that can be used for each and every contract. Furthermore, considering the variety of (often mandatory) national legal provisions, this is a matter for which relying on model clauses may work, but only up to a certain point. In order to ensure that the exclusion / limitation of liability clause to be included in a contract is valid and enforceable, it is necessary to:

First, carry out an assessment of the law governing the contract, to determine whether the clause is valid under such legal system, and then
Check the presence of any mandatory rules in the jurisdictions where the clause may be enforced that may conflict with the agreed exclusions or limitations.
In case a dispute arises, a wrongly-drafted exclusion / limitation of liability clause would end up giving rise to discussions between the parties as to its applicability and validity, thus frustrating the very purpose of the clause and bringing the parties exactly in the situation they wanted to avoid.

In sum, the support of the counsels since the drafting phase is crucial to make sure that the choice is made in favour of the most appropriate exclusion / limitation of liability clause, and, most of all, to avoid the risk that, at a later stage, such a clause may turn out to be a ground for disputes rather than a tool for preventing them.

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[1] SABIC UK Petrochemicals Ltd v Punj Lloyd Ltd et al., [2013] EWHC 2916 (QB), §§ 521-530.

[2] For more information about FIDIC, see https://fidic.org/about-us

[3] For further details on the FIDIC Red Book and the other contracts comprising the FIDIC Suite of contracts, see https://fidic.org/sites/default/files/FIDIC_Suite_of_Contracts_0.pdf

[4] N. G. Bunni, the FIDIC Forms of Contract, Third Edition, 2005, Blackwell Publishing, p. 532.

[5] J. Glover, S. Hughes, Understanding the New FIDIC Red Book: a clause-by-clause commentary, 2006, Sweet & Maxwell, p. 347.

[6] FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, 2^nd Edition, 2017, Clause 1.15 (“Limitation of Liability”).

[7] For instance, it is no coincidence that the clause expressly excludes liability for “loss of profit” and for “any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract”. This is because there have been various disputes on whether loss of profit can be said to be included within the category of “indirect or consequential” losses (J. Glover, S. Hughes, Understanding the New FIDIC Red Book: a clause-by-clause commentary, pp. 346-347).

[8] J. Glover, S. Hughes, Understanding the New FIDIC Red Book: a clause-by-clause commentary, p. 348.

[9] M. Torsello, A. Frignani, Il Contratto Internazionale, 2010, CEDAM, p. 402.

[10] Italian Civil Code, Article 1229.

[11] P. Cendon, Responsabilità Civile, Volume I, 2020, p. 440.

[12] V. Cuffaro, Delle Obbligazioni, in E. Gabrielli, Commentario del Codice Civile, 2013, p. 357.

[13] M. Torsello, A. Frignani, Il Contratto Internazionale, p. 403.

[14] Photo Production Ltd v. Securicor Transport Ltd [1980] UKHL

[15] S. Furst QC, The Hon. Sir V. Ramsey, Keating on Construction Contracts, 8^th Edition, 2006, Sweet & Maxwell, p. 92.

[16] S. Furst QC, The Hon. Sir V. Ramsey, Keating on Construction Contracts, p. 95.

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COVID-19 E GLI IMPATTI SUGLI ARBITRATI IN ITALIA

marketude — Tue, 05 May 2020 09:02:51 +0000

L’Italia, uno dei paesi prima e più toccati dalla pandemia, è stato tra i primi a prendere misure drastiche per la lotta al Coronavirus affrontandone anche gli effetti sull’ampio capitolo dell’amministrazione della giustizia…

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DE BERTI JACCHIA VINCE DAVANTI ALLA CORTE D’APPELLO DI ROMA CONTRO LA REPUBBLICA DEL KAZAKISTAN

marketude — Wed, 06 Mar 2019 16:56:17 +0000

Roma, 6 marzo 2019 – De Berti Jacchia, con un team guidato dai partner Michelangelo Cicogna, responsabile del dipartimento arbitrato dello Studio, e Silvia Doria con i partner Andrew G. Paton, il counsel Raffaella Muroni nonché gli associate Chiara Caliandro e Gennaro Paone, ha assistito vittoriosamente dinanzi alla Corte d’Appello di Roma Anatolie Stati, Gabriel Stati, Ascom Group S.A. e Terra Raf Trans Traiding Ltd (gli “Stati”) nella causa di opposizione a decreto di riconoscimento ed esecuzione di lodo arbitrale straniero in Italia intentata nei loro confronti dalla Repubblica del Kazakistan.

Il decreto, emesso dal Presidente della stessa Corte d’Appello nel gennaio 2018 e già esecutivo, aveva dichiarato l’efficacia nella Repubblica Italiana di un lodo arbitrale da oltre 500 milioni di dollari emesso in Svezia nel dicembre 2013.

Il lodo arbitrale in questione si pone all’esito di un procedimento arbitrale sorto nel 2010, avente ad oggetto investimenti degli Stati relativi a giacimenti e pozzi petroliferi situati in Kazakistan.

Nel luglio 2010, nell’ambito di una controversia con le autorità kazake perdurante già dal 2008, gli Stati hanno dato inizio ad un procedimento arbitrale amministrato dall’Istituto di Arbitrato della Camera di Commercio di Stoccolma, lamentando una violazione da parte della Repubblica del Kazakistan delle previsioni del Trattato sulla Carta dell’Energia (“Energy Charter Treaty”), da questa ratificato. A conclusione del procedimento, il tribunale arbitrale ha rilevato la violazione da parte della Repubblica del suo obbligo di trattamento giusto ed equo degli investitori previsto dal Trattato, condannandola al risarcimento dei danni oltre a spese legali ed interessi in favore degli Stati, per un totale di oltre 500 milioni di Dollari.

Le istanze per l’annullamento del lodo sono state respinte dai giudici svedesi in ogni grado di giudizio, da ultimo dalla Corte Suprema di Svezia nell’ottobre 2017.

La sentenza ottenuta in Italia costituisce l’ultimo sviluppo di una lunga battaglia legale intentata dagli Stati in diversi paesi e volta ad ottenere l’esecuzione del lodo arbitrale, tuttora inadempiuto dalla Repubblica del Kazakistan.

La Corte d’Appello di Roma si è pronunciata in favore degli Stati, respingendo tutte le obiezioni e le difese di merito presentate dalla Repubblica del Kazakistan e confermando il decreto di riconoscimento ed esecuzione del lodo arbitrale in Italia.

In particolare, la Corte non ha accolto la tesi difensiva della Repubblica del Kazakistan per cui il Lodo Arbitrale sarebbe stato fondato su prove false ottenute nell’ambito di un disegno fraudolento degli Stati, rilevando che la questione è stata già definita negativamente dalle Corti svedesi, e che in ogni caso la presunta falsità denunciata non è stata mai riconosciuta da alcuna sentenza passata in giudicato.

I giudici hanno pertanto ritenuto che il lodo non sia contrario all’ordine pubblico italiano, sostanziale e processuale.

La Corte ha altresì respinto gli ulteriori motivi di opposizione, per cui il Tribunale Arbitrale sarebbe stato privo di giurisdizione e la nomina dei suoi componenti sarebbe avvenuta in modo non conforme all’accordo delle parti, ed ha, infine, condannato la Repubblica del Kazakistan al pagamento delle spese del giudizio in favore degli Stati, quantificate in 120.000 Euro oltre accessori di legge.

Oltre che in Italia, gli Stati hanno ottenuto sentenza favorevole circa il riconoscimento e l’esecuzione del lodo arbitrale anche dai giudici federali del Distretto di Columbia negli Stati Uniti d’America, ed hanno ottenuto sequestri su beni riconducibili alla Repubblica del Kazakistan in Belgio, Olanda, Svezia e Lussemburgo.

IN THE PRESS

Energiamercato.it – LA CORTE D’APPELLO DI ROMA SI ESPRIME A FAVORE DEGLI “STATI” NEL LODO ARBITRALE INTENTATO DALLA REPUBBLICA DEL KAZAKISTAN

TopLegal – DE BERTI JACCHIA VINCE CONTRO IL KAZAKISTAN

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Cassa Forense – STUDI LEGALI: DE BERTI JACCHIA VINCE CONTRO KAZAKISTAN SU LODO DA 500 MLN

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