✍️ Is a Conciliation Agreement Signed Before a Mediator of an Italian Mediation Body Enforceable in the EU?

by Pierfrancesco C. Fasano

Disclaimer: This article provides general information only and does not constitute legal advice. Whether a conciliation agreement may be recognised and enforced must be assessed in light of the law in force, the Member State concerned and the specific circumstances. Legal advice should be obtained in the State in which enforcement is sought.

Short answer

A conciliation agreement signed before a mediator of an Italian mediation body is not automatically enforceable (that is, recognisable and enforceable) in every Member State of the European Union.

Its cross-border enforceability depends primarily on the legal form which the agreement has taken in Italy and on the regime applicable in the Member State in which enforcement is sought.

In particular, the agreement may be more readily enforced abroad if:

● it has been approved or endorsed by a judicial authority;

● it constitutes an authentic instrument or another instrument having enforceable effect;

● it falls within the scope of the applicable European rules governing judicial documents, court settlements or authentic instruments;

● or it satisfies the requirements of the Singapore Convention on Mediation, where that Convention applies to the State concerned and to the subject matter.

A simple private agreement signed by the parties before the mediator, without judicial approval, authentication or another recognised form of enforceability, cannot ordinarily be enforced directly in another Member State as if it were a judgment.

1. What is an Italian conciliation agreement?

A conciliation agreement records the settlement reached by the parties during the mediation proceedings. Its content and legal effect must, however, be distinguished from the legal form attributed to the document.

The agreement may be:

● a private agreement signed by the parties;

● an agreement also signed by the parties’ lawyers, where Italian law attributes specific effects to such signatures;

● a document bearing judicial approval or endorsement;

● an authentic or authenticated instrument;

● an enforceable instrument under Italian law;

● an agreement containing monetary obligations, non-monetary obligations or both.

This classification is decisive. The fact that the document was signed before a mediator of an Italian mediation body does not, in itself, make it automatically enforceable throughout the European Union.

2. Is the agreement automatically recognised throughout the EU?

No.

The European Union does not provide for a general rule under which every mediation agreement made in one Member State must automatically be recognised and enforced in all other Member States.

European rules on the circulation of judgments and authentic instruments may apply where the agreement in fact falls within one of the categories covered by the relevant European Regulation.

It is therefore necessary to verify:

● the nature of the instrument;

● the authority which approved, authenticated or issued it;

● its enforceability in Italy;

● the subject matter concerned;

● the Member State of destination;

● the date on which the agreement was concluded;

● any exclusions, reservations or transitional provisions.

3. When may the agreement be enforced as a judgment?

3.1 Judicial approval or endorsement

If the settlement reached in mediation has been approved or endorsed by an Italian court and has taken the form of a judgment or court settlement, it may be possible to rely on the European regime applicable to judgments or court settlements.

In such circumstances, it will normally be necessary to obtain:

● an authentic copy of the judgment or court instrument;

● the European certificate prescribed by the applicable Regulation;

● evidence that the judgment or instrument is enforceable in Italy;

● any required translations;

● any further documents required by the State of enforcement.

The precise procedure depends on the European Regulation applicable to the subject matter.

3.2 Court settlement

An agreement reached in the course of court proceedings and formalised as a court settlement may, in certain circumstances, benefit from the European rules governing the circulation of judgments and court settlements.

It is not sufficient, however, that the agreement was reached during mediation. It must have been formalised in a manner recognised by the applicable Regulation.

4. When may the agreement be enforced as an authentic instrument?

An agreement may be enforced abroad under the regime applicable to authentic instruments if it satisfies the requirements laid down by European legislation and by the law of the State of origin.

Generally, it will be necessary for:

● the instrument to have been drawn up or authenticated by a competent authority;

● the obligation to be enforceable in the State of origin;

● the instrument to fall within the substantive scope of the applicable Regulation;

● the required certificate to be available;

● the documentary and linguistic formalities of the State of enforcement to have been complied with.

An agreement signed before a mediator does not automatically become an authentic instrument. The mediator’s involvement does not necessarily replace the intervention of a notary, court or other competent authority.

5. What is the significance of enforceability in Italy?

Before seeking enforcement in another Member State, it is necessary to establish whether the agreement is enforceable in Italy.

The contractual validity of an agreement does not always coincide with its enforceability.

It is therefore necessary to ascertain:

● whether the agreement constitutes an enforceable instrument under Italian law;

● whether judicial approval is required;

● whether qualified signatures or authentication are required;

● whether the agreement contains obligations which are sufficiently certain, liquidated and due for payment or performance;

● whether enforcement is already available in Italy;

● whether an official certificate confirming enforceability exists.

If the document is not enforceable in Italy, it cannot ordinarily be enforced abroad directly as an enforceable instrument.

6. May the Singapore Convention on Mediation apply?

The United Nations Convention on International Settlement Agreements Resulting from Mediation, commonly known as the Singapore Convention on Mediation, provides a possible mechanism for the recognition and enforcement of international settlement agreements resulting from mediation.

Its application must, however, be examined with particular care.

It is necessary to verify:

● whether the Convention is in force between the States concerned;

● whether the agreement is international within the meaning of the Convention;

● whether it in fact resulted from mediation;

● whether it is recorded in writing and signed;

● whether evidence is available that the agreement resulted from mediation;

● whether the subject matter falls within the scope of the Convention;

● whether any applicable declarations, reservations or exclusions exist.

The Convention does not automatically apply to every mediation agreement concluded in Italy and does not necessarily replace the European regimes applicable to judgments or authentic instruments.

Moreover, its applicability must be distinguished from the question of the jurisdiction of the court or authority in the State of enforcement.

7. Can a private agreement be enforced directly in another Member State?

As a general rule, a private agreement cannot be enforced abroad directly as if it were a judgment.

If the agreement has not been approved, authenticated or converted into an instrument recognised under the applicable regime, the creditor may need to:

● seek voluntary performance;

● obtain a judgment in the State having jurisdiction;

● use a simplified European procedure, where the relevant requirements are satisfied;

● have the agreement recognised under the domestic law of the State of destination;

● obtain an enforceable instrument in Italy or in the State having jurisdiction.

The agreement may nevertheless have evidential and contractual value. Its cross-border enforceability must, however, be established in accordance with the applicable rules.

8. Which European procedure may be used?

The procedure depends on the nature of the obligation and the extent to which it is disputed.

8.1 Undisputed monetary claims

In the case of an undisputed monetary claim, it may be appropriate to consider a simplified European procedure, such as the European order for payment procedure, provided that all applicable requirements are satisfied.

That procedure does not automatically convert the mediation agreement into a European judgment. It may, however, enable the creditor to obtain a judicial instrument capable of enforcement where the debtor does not lodge an opposition or where the applicable conditions are otherwise meet.

8.2 Disputed claims

If the debtor disputes the agreement or the obligation, it may be necessary to commence ordinary proceedings or to rely on the competent forum under the applicable European and national rules.

8.3 Non-monetary obligations

Obligations to do, refrain from doing or deliver an asset require specific analysis. Simplified procedures for monetary claims may not be available.

9. What documents are normally required?

The documentation depends on the applicable regime, but may include:

● the complete agreement;

● a certified true copy;

● evidence of the parties’ signatures;

● evidence that the agreement resulted from mediation;

● evidence of enforceability in Italy;

● any order approving or endorsing the agreement;

● the required European or international certificate;

● evidence of service on, or notification to, the debtor;

● a translation into the language required by the State of enforcement;

● an apostille, legalisation or other authentication, where required;

● documentation relating to the parties’ representation;

● evidence of identity and signing authority;

● the forms and declarations required by the foreign authority.

The documentation should be checked before filing. An incomplete document or one lacking the required certification may result in delay, a request for further information or rejection of the application.

10. What are the principal grounds for refusal?

Recognition or enforcement may be refused, limited or stayed, among other reasons, where:

● the agreement is not enforceable in the State of origin;

● the document does not fall within the scope of the regime relied upon;

● evidence that the agreement resulted from mediation is lacking;

● the required signature is missing;

● the debtor did not receive adequate information or notification;

● the agreement is invalid, void or contrary to the applicable law;

● enforcement would be incompatible with public policy;

● an incompatible decision exists between the same parties;

● the obligation has already been performed;

● enforcement is time-barred or otherwise restricted;

● the document concerns an excluded subject matter;

● fundamental procedural safeguards have been breached;

● the certificate is incorrect, incomplete or out of date.

The existence of a certificate facilitates the procedure but does not automatically guarantee enforcement.

11. Mixed obligations in the same agreement

An agreement may contain different obligations, for example:

● payment of a sum of money;

● delivery of documents or assets;

● waiver of a claim;

● an obligation to take specified steps;

● an obligation to refrain from specified activities.

Each obligation must be analysed separately. A procedure available for payment of a sum of money may not be available for an obligation to do or refrain from doing something.

It is also necessary to determine whether the obligations are severable and whether enforcement may be sought in respect of only part of the agreement.

12. Which authority has jurisdiction in the State of enforcement?

The application must be made to the authority having jurisdiction under the law of the Member State of destination.

Depending on the national system, this may be:

● a court;

● a court office;

● an enforcement authority;

● a registry;

● a notary;

● a competent administrative authority.

Jurisdiction may depend on:

● the debtor’s domicile;

● the place where the obligations are to be performed;

● the location of the assets;

● the nature of the obligation;

● the type of instrument;

● national procedural rules.

It is essential to verify in advance the applicable forms, time limits, costs, translations, service requirements, security requirements and procedures for challenging enforcement.

Practical conclusion

A conciliation agreement signed before a mediator of an Italian mediation body may be enforceable in the European Union, but it is not automatically enforceable merely because it was signed in mediation.

The possibility of enforcement depends on its legal classification:

● if it has been approved or endorsed by a court, it may fall within the regime applicable to judgments or court settlements;

● if it is an authentic or authenticated and enforceable instrument, it may fall within the regime applicable to authentic instruments;

● if it is an international settlement agreement resulting from mediation, the Singapore Convention may be considered where applicable;

● if it is a simple private agreement, it will ordinarily be necessary to obtain an enforceable instrument or to use a procedure provided for by European or national law.

Final checklist before proceeding

Has the document been correctly classified: private agreement, enforceable instrument, authentic instrument, court settlement or judgment?

Is the agreement enforceable in Italy?

Has any requirement for judicial approval been verified?

Has the agreement been signed by the parties and, where necessary, by their respective lawyers?

Is a certified true copy available?

Is evidence available that the agreement resulted from mediation?

Has the applicable European Regulation, convention or national law been identified?

Does the Singapore Convention apply to the States concerned and to the subject matter?

Have the relevant dates, territorial scope, exclusions, reservations and transitional provisions been verified?

Are the obligations monetary or non-monetary?

Is the claim disputed or undisputed?

Is the certificate required by the competent authority available?

Has evidence of service on, or notification to, the debtor been collected?

Has a compliant translation been prepared?

Are apostille, legalisation, authentication, notarisation or registration required?

Has the competent authority in the State of enforcement been identified?

Have the applicable forms, time limits, costs, security requirements and procedures for challenging enforcement been verified?

Have the possible grounds for refusal, stay, limitation or limitation by lapse of time been assessed?

Has the possibility of partial enforcement in respect of mixed obligations been considered?

Have the official texts and up-to-date instructions been checked immediately before filing?

An Italian certificate or enforceable instrument may facilitate enforcement, but it does not replace the procedure in the Member State of destination and does not, by itself, guarantee the final outcome.