The two exclusions: arbitration and insolvency across the border

Arbitration outside the Convention

Article 1(2)(d) excludes arbitration from the Lugano Convention. The exclusion covers the arbitral proceedings themselves, court proceedings in support of arbitration such as the appointment of arbitrators, and the recognition and enforcement of awards.¹ For disputes between Lugano and Italian parties, arbitration offers three advantages over state court litigation. It avoids the Italian torpedo, since a court seised in breach of an arbitration agreement must refer the parties to arbitration under Article II(3) of the New York Convention. It permits the choice of a neutral seat and of arbitrators with expertise in banking, trading or construction. And its awards are enforceable in Italy and Switzerland, as in some 170 other states, under the New York Convention of 10 June 1958, which applies between Switzerland and Italy since the 1960s.²

Chapter F.II has described Chapter 12 of the PILA, the revision of 2021, the Swiss Rules of International Arbitration and the choice between Lugano, Zurich and Geneva as seats for commodity disputes. Here three points concern the Swiss–Italian relationship in particular. First, Article 7 PILA obliges a Swiss court seised of a dispute covered by an arbitration agreement to decline jurisdiction unless the agreement is null, inoperative or incapable of being performed. Second, an award rendered in Switzerland in an international arbitration can be challenged only before the Federal Supreme Court, the sole instance under Article 191 PILA, and only on the limited grounds of Article 190(2) PILA.³ Third, arbitration in Lugano can be conducted in Italian. Italian parties who want to argue in their own language before a neutral tribunal thus find in Lugano a seat that combines the language of Milan with the arbitration law of Switzerland.

Italian arbitration law after 2023

Italian arbitration law was reformed by Legislative Decree No. 149 of 10 October 2022, with effect for arbitrations commenced after 28 February 2023. The reform strengthened disclosure duties of arbitrators, introduced a translatio iudicii between courts and arbitral tribunals and shortened the time limit for the annulment of awards. Above all, it gave arbitrators in Italian-seated arbitrations the power to grant interim measures if the parties have expressly conferred it in the arbitration agreement or in institutional rules (Article 818 c.p.c.).⁴ Foreign awards, including Swiss awards, are declared effective in Italy by decree of the president of the Corte d'appello of the district where the opposing party resides, or of the Corte d'appello of Rome if that party does not reside in Italy (Article 839 c.p.c.). The president examines only the formal regularity of the award and refuses recognition if the dispute was not arbitrable under Italian law or if the award contains provisions contrary to public policy. The opposing party can then challenge the decree under Article 840 c.p.c., which incorporates the grounds of Article V of the New York Convention.⁵ Since the 2022 reform, the decree declaring a foreign award effective is immediately enforceable.⁶

Notes

1. LC 2007, Art. 1(2)(d) (above); Court of Justice, judgment of 25 July 1991, Marc Rich, C-190/89, operative part (exclusion extends to court proceedings on the appointment of an arbitrator), EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61989CJ0190. ↩
2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958, SR 0.277.12; UNCITRAL, status table, https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/status2 (172 parties; in force for Switzerland since 30 August 1965 and for Italy since 1 May 1969). See also Chapter F.II. ↩
3. PILA, Art. 7, 190 and 191, at droit-bilingue.ch, https://www.droit-bilingue.ch/de-it/2/29/291-7-10.html, https://www.droit-bilingue.ch/de-it/2/29/291-190-232.html and https://www.droit-bilingue.ch/de-it/2/29/291-191-234.html; Art. 190(4) was inserted by the Federal Act of 19 June 2020, in force since 1 January 2021 (AS 2020 4179). See Chapter F.II. ↩
4. Coppola, Covucci and Bosco, LCA (above). ↩
5. Codice di procedura civile, Art. 839, at Brocardi.it, https://brocardi.it/codice-di-procedura-civile/libro-quarto/titolo-viii/capo-vii/art839.html; Art. 840, at Brocardi.it, https://www.brocardi.it/codice-di-procedura-civile/libro-quarto/titolo-viii/ capo-vii/art840.html (opposition within thirty days before the Corte d'appello). ↩
6. Coppola, Covucci and Bosco, LCA (above). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.