A recent decision rendered by Italian Supreme Court sitting en banc (decision No. 8776 of 30 March 2021, Italian text available here) has clarified – based on hermeneutical criteria, systematic reasons, and constitutional provisions – when the term for commencing setting aside proceedings under Article 828, para. 2, of Italian Code of Civil Procedure starts to run.
The ruling is fascinating since – in interpreting the legislative provision within the procedural system – it poses some “firm points”, which are also relevant in terms of appeals against State Courts’ decisions.
The Supreme Court’s decision stems from a ruling rendered by the Court of Appeal of Bologna. The latter had ex officio declared not admissible the recourse a party filed for setting aside an arbitration award. The Appellate Court based its decision on the fact that the proceedings commenced after the so-called “long” term period of one year, starting from the date of the last signature by the arbitrators, pursuant to Article 828, para. 2 of Italian Code of Civil Procedure (in its formulation before the 2006 reform).
The same party lodged an appeal with the Italian Supreme Court, claiming violation of Articles 3, 24 and 111 of Italian Constitution and Article 183, para. 4, of Italian Code of Civil Procedure. In this respect, it stated that:
- on the basis of a “constitutionally oriented interpretation“, the rule should be understood in the sense that the time limit for commencing setting aside proceedings begins to run only from the moment when the award becomes known to the parties;
- the Court of Appeal could not have ruled, ex officio, on a decisive question, not even if submitted to the parties.
The First President of the Supreme Court deemed that the matter was of particular importance. Consequently, at her request, the case was heard by the Supreme Court sitting en banc.
The Supreme Court rejected the appeal based on the following grounds.
In interpreting the provision of Article 828, para. 2 of Italian Code of Civil Procedure, the Court followed the standard criteria of hermeneutics provided for in Article 12, para. 1 of preliminary rules to Italian Civil Code, under the principle – enunciated by the Constitutional Court in numerous rulings – according to which it is necessary, primarily, to take into account the “canons of literal and historical-teleological interpretation” of the regulations and, in particular, it noted that:
- “the letter of Article 828, para. 2 of Italian Code of Civil Procedure does not in itself give rise to doubts or perplexities of interpretation, since it establishes the starting point for appealing, within the so-called long term, from the time of the last signature of the arbitrators“;
- “in fact, the rationale of the provision in question stems from the attribution of effectiveness to the award as of such a time, whereby the filing with the registry of the court where the arbitration takes place, pursuant to Article 825 of the Italian Code of Civil Procedure, is understood as a mere fulfilment that is required of the party intending to enforce the award“;
- “the award – except for the provision of Article 825 of Italian Code of Civil Procedure for the purposes of its enforceability – produces the effects of the ruling rendered by the judicial authority from the date of its last signature”, with the consequence that “the publication of the judgement – with which the measure comes into existence and begins to produce its effects – corresponds to the act of affixing the last signature of the arbitrators“;
- considering the equivalence of the award to the ruling rendered by the judicial authority, the signature by the arbitrators determines further and important effects, including “the non-modifiability of the award“, pursuant to Article 824-bis of Italian Code of Civil Procedure (see Italian Supreme Court, VI Civ. Chamber, 16 March 2018, No. 6666, Italian Supreme Court,VI Civ. Chamber, 12 November 2015, No. 23176, Italian Supreme Court, III Civ. Chamber, 26 May 2014, No. 11634).
Therefore, the Court has established that the term referred to in Article 828, para. 2, of Italian Code of Civil Procedure necessarily starts from the arbitrators’ signature date and not from the communication of the award to the parties or its filing date, and that this provision is consistent with the procedural system and does not violate Articles 3, 24 and 111 of Italian Constitution.
In fact, the one-year term for challenging the award gives the involved party a broad opportunity to exercise the right of defence and is in line with the provision under Article 327, para. 1, of Italian Code of Civil Procedure for appealing a ruling rendered by an ordinary judicial authority, for which the six-month term starts from its publication, rather than the communication by the registry clerk of the Court.
In this regard, the Constitutional Court, with rulings No. 584 of 28 December 1990 and No. 129 of 26 March 1991, has already declared inadmissible the question of the constitutional legitimacy of art. 327, paragraph 1, of the Italian Civil Procedure Code, being the provision “a corollary of the principle (…) according to which, after a certain lapse of time, the “res judicata” is deemed independently of the notification of the ruling“.
If there is a delay by the arbitrators in communicating the award, the right of defence is, in any event, guaranteed by the possibility of exercising a remedy consisting in the relief from the time limit, provided for by Article 153 of Italian Code of Civil Procedure, which is also applicable to the challenge of arbitration awards (see Italian Supreme Court sitting en banc, 12 February 2019, No. 4135).
In this specific case, the appellant – despite the fact that the award was signed on 15 April 2005 and communicated on 6 May 2005 – had lodged an appeal with the Court of Appeal only on 13 June 2006 and, therefore, well beyond the term provided for in Article 828, para. 2 of Italian Code of Civil Procedure.
Moreover, the appellant has merely formulated a different interpretation of the provision, but has not given the reasons for its inaction, nor – even less so – has attached reasons that could determine the relief from the time limit.
Finally, the Court found that the declaration by the Court of Appeal of the non-admissibility ex officio of the appeal was correct.
According to established case law (see Italian Supreme Court, III Civ. Chamber, 27 November 2018, No. 30716 and Italian Supreme Court, III Civ. Chamber, 7 November 2013, No. 25054), the forfeiture of the time limit to appeal can be identified autonomously by the Judge, without it being necessary to submit the matter to the parties in advance, pursuant to Article 101, para. 2 of Italian Code of Civil Procedure.