Trieste Court of Appeal’s order of 28th March 2025 (Italian text available here) addresses a question of considerable practical relevance: the admissibility of interim attachment before proceedings for exequatur of a foreign arbitral award. The matter gains added interest from the fact that, following reforms under Legislative Decree 149/2022, decrees recognising foreign awards in Italy are immediately enforceable.
The ruling stands out for the pragmatic approach adopted by the Trieste court, which successfully balanced interim protection needs with recent legislative changes, offering a systematic reading that transcends formalistic rigidities and emphasises the substance of procedural institutions.
The applicant sought interim attachment, presented as “instrumental to introducing exequatur proceedings under Article 839 of the Civil Procedure Code”, which would be commenced in subsequent days once necessary documentation was prepared, including certified translation of the award’s 500-plus pages.
The respondent raised threefold inadmissibility objections to the interim application: that proceedings under Article 839 of the Civil Procedure Code were merely constitutive or declaratory in nature, whilst interim attachment was instrumental only to monetary condemnation actions; that Trieste Court of Appeal lacked jurisdiction by subject matter, jurisdictional level and territory; and that periculum in mora was absent given the company’s cash availability and financial capacity.
The Court of Appeal addressed interim protection admissibility through interpretation transcending rigid correlation between main proceedings’ nature and available interim instruments. The decision clarifies that “one must not fall into the error of creating a one-to-one link between interim attachment and condemnation proceedings”, specifying that whilst every monetary condemnation judgment is abstractly compatible with interim attachment, space may nonetheless remain for granting interim relief where the future title, arising from any type of proceedings, has concrete enforcement value.
This systematic reading leads the Trieste court to assert that if exequatur proceedings result in issuing an enforcement title, anticipating protection through interim measures should be considered inherent to such purpose, rendering verification of the related proceedings’ condemnatory nature unnecessary. This represents a deliberately “oriented interpretation of the provision which would otherwise see interim protection already abstractly precluded, raising constitutional doubts”, demonstrating how the court favoured a constitutionally-oriented reading of procedural institutions.
Particular attention merits the Court’s analysis of effects from reforms introduced by Legislative Decree 149/2022, which expressly assigned immediately enforceable effect to exequatur decrees. The President observes that precisely this provision now definitively legitimises theories that had previously recognised compatibility of interim measures, rendering the question of Article 839 Civil Procedure Code proceedings’ nature secondary.
The decision highlights how legislative amendment, far from precluding interim protection, instead confirms its legitimacy through recognising the decree’s immediate enforceability. This reading appears particularly significant because it demonstrates how the reform legislature, by attributing immediate enforcement effect to recognition orders, implicitly confirmed the substantially satisfactory nature of exequatur proceedings, thus justifying interim protection anticipation.
Regarding jurisdiction, the Court of Appeal addresses the preliminary question concerning the President’s interim powers in view of commencing exequatur proceedings. The adopted solution rests on recognising that, once compatibility between exequatur proceedings and interim relief is established for the systematic reasons above, the Court of Appeal President has jurisdiction to decide on interim applications as the natural judge of main proceedings.
The approach followed by the Trieste court demonstrates how jurisdiction questions should be resolved through functional evaluation of procedural institutions, avoiding jurisdictional fragmentation that might compromise protection effectiveness. The decision thus confirms that interim jurisdiction naturally follows that for main proceedings, without requiring artificial distinctions based on proceedings’ formal nature.
In analysing fumus boni iuris, the Court adopts a particularly pragmatic approach, clarifying that this requirement should not be understood as structurally limited to ascertaining the merit of proceedings to which interim relief is instrumental, but must rather exist in relation to the substantive right asserted, namely the credit right to be satisfied through enforcement action. This clarification proves fundamental because it shifts attention from procedural to substantive levels, enabling fumus evaluation that transcends specific foreign title recognition modalities.
The decision establishes that any lack of prerequisites for Article 839 Civil Procedure Code applications, such as timely production of certified and translated title copies, will if necessary determine revocation for interim relief ineffectiveness, but does not preclude requesting interim relief in the anterior phase. In this specific case, the Court observes that possible credit existence was so undisputed that Deal S.r.l.’s crisis recovery plan itself provided different reserve quotas depending on the degree of acceptance of claims referred to the arbitral tribunal.
The decision concludes by rejecting the interim application for lack of periculum in mora, offering articulated analysis of evaluation criteria for this requirement. The Court specifies that in granting measures, reference may be made to precise, concrete factors both objective and subjective, with the requirement deducible both from elements concerning the debtor’s financial capacity relative to credit amount, and from elements represented by debtor behaviour reasonably suggesting evasive intentions.
In this specific case, periculum in mora evaluation led to application rejection based on the respondent’s substantial financial capacity, availability of considerable liquid holdings, ownership of diversified assets and especially publicity and knowledge of potential credit existence, now also judicially ascertained. The Court further highlights that danger of non-satisfaction due to main proceedings duration proves inconsistent, given that commencing exequatur proceedings depends only on the creditor and involves proceedings among the swiftest in duration and most restricted in evaluation margins.
Trieste Court of Appeal’s order represents a significant contribution to procedural law evolution in relations between interim protection and recognition of foreign arbitral decisions. The adopted approach demonstrates how formalistic rigidities can be overcome through systematic and constitutionally-oriented interpretation of procedural institutions, emphasising protection instruments’ substance over dogmatic classifications.
The decision appears particularly significant for clarifying that 2022 reforms, by attributing immediate enforceability to exequatur decrees, implicitly confirmed compatibility between recognition proceedings and conservative interim protection. This orientation might find application in other contexts where problems arise regarding interim relief instrumentality relative to proceedings that are formally non-condemnatory but substantially satisfactory.
The Trieste court’s interpretive innovation lies in successfully balancing protection effectiveness needs with respect for procedural categories, offering solutions that account for both legislative amendments introduced by reform and concrete needs of those seeking satisfaction of credits ascertained in foreign arbitral proceedings. Procedural costs compensation, motivated by the absolute novelty of addressed questions, confirms the court’s awareness of having traced an interpretive path destined to influence future practice in a matter of growing relevance for legal practitioners.
