Recognition of foreign judgments and decisions

Art. 64 of law n. 218/1995, which governs the recognition of foreign orders in Italy, presents an elastic scope, including not only judgments in the strict sense but also other orders similar in form and substance, provided they are not issued by judicial authorities.

This extensive interpretation finds foundation in the necessity to ensure the effectiveness of foreign orders that, while not being configured as judgments in the strict sense, produce relevant legal effects deserving of protection in the Italian legal system. Think, for example, of decisions of independent administrative authorities or of acts of voluntary jurisdiction issued in other Member States of the European Union.

However, this possibility of recognising foreign acts must be carefully assessed. Before accepting an act coming from another country, it is necessary to verify that it respects the laws and fundamental principles of the Italian legal system. This control serves to ensure that the foreign order does not conflict with the basic rules of our legal system. Among other things, it should be observed that the requirements of art. 64 are conceived mainly for judicial decisions, making adaptation to acts of administrative nature or coming from non-judicial authorities difficult.

A particularly delicate aspect concerns the verification of compatibility with Italian public policy, a requirement expressly provided by art. 64, letter g). Such assessment must be particularly rigorous when it concerns non-judicial orders, to avoid the recognition of acts that, although formally legitimate according to the legal system of provenance, might conflict with fundamental principles of the Italian legal system.

Doctrine has highlighted how this elastic interpretation of art. 64 reflects a broader trend of contemporary private international law, oriented towards greater openness to the recognition of foreign orders, in a perspective of international judicial cooperation and effective protection of rights. However, as has been said, such openness must always balance with the need to ensure the consistency of the internal legal system and the protection of fundamental rights.

Automatic recognition of foreign judgments is subject to compliance with a series of precise conditions. First of all, it is necessary that the foreign judge who issued the judgment had jurisdiction based on criteria compatible with those of the Italian legal system. This ensures that the court has an effective link with the dispute and that arbitrary decisions do not occur.

Another essential requirement is that the introductory act of the proceeding has been brought to the attention of the respondent in compliance with the law of the State in which the proceeding took place and without violating the essential rights of defence. This principle protects the right of the parties to participate fairly in the proceeding. In this regard, the rule also requires that the parties have appeared in proceedings according to local law or, in case of default, that this be declared in conformity with that same law.

The judgment, in addition, must be definitive, namely have become final according to the law of the State of origin. In other words, it must no longer be subject to appeal. It must also be verified that it does not enter into conflict with a decision issued by an Italian judge that has already become final, thus preserving the consistency of the national legal system. In addition, no proceeding pending in Italy must exist between the same parties and for the same subject matter, started before the foreign proceeding.

Finally, the judgment cannot be recognised if it produces effects contrary to Italian public policy. This clause represents a general safeguard to prevent decisions incompatible with the fundamental values and essential principles of the Italian legal system from having effect on national territory.

Overall, art. 64 ensures a balance between respect for decisions issued abroad and the protection of the autonomy and fundamental values of the Italian legal system. While simplifying the procedures, thanks to automatic recognition, the rule requires a rigorous assessment of these criteria for every individual case. In particular, the verification of respect for public policy often represents the most delicate aspect, because it involves an interpretation of fundamental Italian principles.

As has been seen, in Italy, as in the other countries of the European Union, the recognition of foreign judgments generally takes place automatically. In our country the principle of automaticity is recognised by art. 64 della Legge n. 218/1995.

This regulatory framework is supplemented by the EU regulations, such as the Bruxelles I bis Regulation, which ensure the immediate recognition of judicial decisions issued in another EU Member State without the need for further formalities. The Italian law itself, in articles 64-71, establishes the criteria necessary to consider a foreign judgment valid: competent jurisdiction, regularity of the proceeding, non-contrariety to Italian public policy and the absence of conflicts with other previous decisions.

However, the actual enforcement of the judgment requires further steps. Within the EU, the provisions of Bruxelles I bis Regulation eliminate the need for an exequatur procedure for judgments issued after 2015, making enforcement automatic once the procedural requirements are satisfied. For non-EU countries, instead, it is often necessary to start an ad hoc procedure to obtain an enforceable title, demonstrating that the foreign judgment respects the criteria established by Italian private international law.

Complexity increases in cases involving States that have no bilateral agreements with Italy. Here, the principle of automatic recognition can be limited, requiring judicial intervention to ascertain the conformity of the foreign judgment with Italian requirements. In addition, certain international conventions, such as the Convenzione dell’Aja or that of Lugano, offer simplification mechanisms that vary in scope of application and nature of disputes.

The importance of streamlined and predictable procedures for the recognition and enforcement of foreign judgments is fundamental to reduce uncertainties and to favour international commercial relations. A clear and uniform regulatory framework, supported by international agreements and European rules, contributes to ensuring that the rights enshrined in a judgment are effectively protected also beyond national borders.

Boschetti Studio Legale, thanks to its experience in international law, offers complete assistance to ensure the recognition and enforcement of foreign judgments in Italy and abroad. Our team of lawyers provides advice and assistance to resolve, and also prevent, problems concerning the enforcement of foreign judgments in Italy.

Public deeds, drafted by public officials authorised to confer public faith on them, enjoy articulated regulation for their recognition and enforcement in Italy. The reference legislation is based on internal, EU and international sources, each of which intervenes to regulate the various aspects of their effectiveness. Italian legge n. 218/1995, EU regulations such as Bruxelles I bis and 805/2004, as well as the Lugano II Convention, constitute the principal regulatory references.

Recognition of foreign public deeds requires the verification of the quality of the public official, of the competence and of compliance with formalities according to the law of the State of origin. When such deeds have enforceable force abroad and must be enforced in Italy, art. 68 della legge n. 218/1995 refers to the judicial control provided for foreign judgments. Such control verifies the compatibility with Italian public policy and the absence of conflicts with internal judicial decisions. Even in the absence of enforcement, public deeds that produce constitutive effects, such as a divorce, are considered automatically recognised, save for contrary provisions.

EU legislation provides for a simplified regime for enforceable public deeds. Regulations Bruxelles I bis and 805/2004 establish that such deeds are automatically enforceable in other Member States, provided they satisfy the authenticity requirements of the State of origin. Only if manifestly contrary to public policy can enforcement be denied. The transcription of acts, such as a notarial divorce, may also require a judicial procedure to ensure compliance by the relevant authorities.

More recent EU regulations, such as those concerning successions or patrimonial regimes, include specific provisions on the acceptance and enforceability of public deeds, confirming their equivalence with judicial decisions. In particular, Regulation n. 805/2004 allows certifying such deeds as European enforcement orders, favouring harmonised application throughout the territory of the European Union.

Regarding the specific cases of recognition of foreign judgments in Italy, in family law matters, one cannot fail to start from the topic of the recognition of Kafala (or “Kafalah“): an institution known in some countries of Islamic tradition, that attribute custody of the minor to a foster carer outside a legal relationship of filiation.

The prevailing tendency is to frame the institution of kafalah within the scope of measures of protection of minors, assimilating it to fostering, precisely in consideration of the absence of family ties. This interpretation finds confirmation in jurisprudential evolution which, overcoming initial resistances linked to the fear of possible circumventions of national legislation on adoption matters, has progressively accepted the possibility of recognising in Italy kafalah orders issued abroad. Such recognition takes place through the application of articles 66-67 della legge 218/1995, on the basis of the consideration that kafalah represents a tool for the protection of minors lacking capacity, similarly to the institution of fostering. This classification is moreover consistent with what is provided by the Hague Convention of 19 october 1996, in force in our legal system since 1 January 2016.

Another relevant topic in family law is that of adoptions abroad, especially in cases in which Italian law does not allow adoption for certain categories of adopters. This topic has raised heated debate in our country. Reference is made mainly to single people, unmarried couples and same-sex couples who intend to adopt. The question is made current by the rigidity of articolo 6 della legge 184/1983, which limits adoption to couples married for at least three years, in contrast with an evolving society. This constraint has contributed to a drastic reduction of adoptions in Italy in recent years, pushing many to resort to adoption abroad and to subsequently request recognition in Italy.

Italian case law was initially very restrictive. The Corte di Cassazione considered adoption by subjects other than a couple united in marriage contrary to the fundamental principles of family law of minors, as prescribed by art. 6 della legge n. 184/1993. However, this orientation underwent evolution. For example, the Corte EDU recognised the right of a single Luxembourg citizen to adopt, judging contrary to art. 8 della CEDU, which provides for the right to respect for family life, a regulation that limited adoption in favour of a married couple. In the wake of this judgment, Italian case law underwent significant evolution regarding the recognition of international adoptions by single people. The interpretative path began with a more cautious position of the Corte di Cassazione, which considered it possible to recognise foreign adoption in favour of single people, but limiting its effects to those provided by art. 44 della legge 184/1983 for adoption in special cases, thus excluding the effects of full adoption.

This restrictive vision was however subsequently overcome by trial courts, which embraced a broader interpretation favourable to the interest of the minor. The judges have indeed recognised the possibility of attributing full effectiveness to foreign legitimating adoption orders in favour of unmarried persons, maintaining the same effects provided in the country of origin. This new interpretation was based on the consideration that there was no incompatibility with the principles of the Italian legal system and that, indeed, only by ensuring full equivalence of effects could the protection of the superior interest of the minor be fully realised.

Venezia Civil Court, for example, recognised a full adoption pronounced in Kenya in favour of an Italian citizen who had resided in that country for over a decade. Similarly, the Tribunale di Genova gave full recognition to an adoption pronounced in Benin — a country not signatory to the Convenzione dell’Aja del 1993 nor to bilateral agreements with Italy — in favour of an unmarried Italian citizen. In this last case, the tribunal gave particular relevance to the strong affective bond already established between the woman and the minor, who had previously been entrusted to her.

A controversial aspect concerns same-sex couples. Although it was initially considered that adoption had to respect the traditional model of family, recent rulings, such as that of the Sezioni Unite della Cassazione, have recognised adoptions obtained abroad by same-sex couples, provided they do not derive from practices contrary to public policy, such as surrogate motherhood. The Firenze Juvenile Court too has accepted cases of full adoption by Italian same-sex couples residing abroad, overcoming the requirement of marriage provided by Italian law.

These decisions have recognised foreign adoption orders on the basis of art. 64 della legge n. 218/1995, since they were adoptions taking place entirely abroad according to local law, and not international adoptions pursuant to legge n. 184/1993, which instead provides that the adopters obtain the suitability decree from the Italian tribunale per i minorenni. Unlike what is provided by art. 6 of the aforementioned Italian law, local laws indeed did not provide for the requirement that the adopters be united in marriage for at least three years.

These developments mark an opening towards the recognition of diversified family models, with the objective of ensuring the well-being of the minor, while respecting the principles of the Hague Convention and the CEDU.

The Italian system of private international law, while providing for the automatic recognition of foreign judgments, contemplates specific situations in which such automation is no longer applicable. In particular, when a dispute arises on the effectiveness of a foreign order within a judicial proceeding with different subject matter, the judge can proceed with an incidental assessment of the recognisability requirements, with effects limited to that proceeding.

Judicial verification becomes necessary in three main scenarios.

• The first occurs when the foreign order requires forced enforcement, as in the case of a condemnation to pay a sum of money.
• The second case concerns the explicit dispute of recognition.
• The third manifests itself when the person required to comply with the order does not do so, in situations that require forms of implementation other than forced enforcement.

In these circumstances, jurisdiction belongs to the Corte d’Appello of the place of implementation of the order, which proceeds according to the summary cognition rite. The procedure can be started by anyone with a legally relevant interest, including the successors of the parties of the foreign proceeding.

A particular case concerns transcriptions in public registers. While initially preventive judicial control was considered necessary, the current orientation allows civil status officers to autonomously proceed with transcriptions and annotations, verifying the recognisability requirements. Only in case of refusal can the interested party turn to the Corte d’Appello. The same principle applies to property registers and to the business register.

Other grounds for refusal of automatic recognition may include contrariety to public policy, violation of the rights of defence, incompatibility with other national decisions or the lack of the international jurisdiction requirements of the foreign judge.

Boschetti Studio Legale provides specialised assistance in cases of refusal of recognition and transcription of foreign judgments in Italy. Our team of experts carefully assesses the reasons for the refusal and develops the most effective strategy to protect the interests of the client, whether it concerns contesting the refusal of the civil status officer through appeal to the Appeal Court, or whether it is necessary to start a delibation procedure. Thanks to its profound knowledge of private international law and of the experience matured in this specific sector, the firm is able to manage even the most complex situations, providing assistance in the gathering and preparation of the necessary documentation, in the preparation of appeals and in representation in court, ensuring complete and professional support to the client to obtain recognition of their rights.

The recognition of foreign judgments and decisions in Italy is a matter that requires competence, precision and an in-depth knowledge of private international law. The regulatory complexity, combined with the necessity to correctly interpret the fundamental principles of the Italian legal system, makes the support of specialised professionals essential.

One of the most delicate aspects concerns the analysis of the compatibility of the judgments with Italian public policy. This concept, while being flexible, acts as a barrier for decisions that could compromise the essential principles of our legal system, such as the protection of fundamental rights or equal treatment between the parties. The verification of public policy is particularly relevant for judgments deriving from legal systems with values and principles divergent from Italian ones.

In addition to public policy, other elements must be carefully assessed, such as the jurisdiction of the foreign judge, the regularity of the adversarial proceeding and the absence of conflicts with Italian decisions or pending proceedings. These criteria, defined by art. 64 della legge n. 218/1995, represent the foundations to ensure a balance between respect for foreign decisions and the protection of internal regulatory consistency.

Boschetti Studio Legale stands out for its capacity to address the challenges linked to the recognition of foreign judgments, combining an analytical approach with in-depth knowledge of Italian, European and international rules. Our objective is to simplify the process for our clients, providing personalised advice and continuous assistance in all phases of the procedure.