1 March 2023 represents an important date for Italian arbitration practitioners. The Italian Code of Civil Procedure reform enters into force, containing targeted but extremely relevant interventions for arbitration matters. In addition, the new Arbitration Rules of the Milan Chamber of Arbitration also enter into force (their Italian text is available here).
Examining these latter rules, the most exciting provisions concern the precautionary powers of CAM arbitrators.
The new Article 818 of the Italian Code of Civil Procedure allows the parties to vest Italian-seated tribunals with the power to issue interim measures, provided that this is done, also by referring to arbitration rules, in the arbitration agreement or a written agreement entered into before the commencement of the arbitration proceedings.
And under Article 26 of the new CAM arbitration rules, the arbitral tribunal has the power to issue all interim, urgent and provisional measures, also of anticipatory content, that are not forbidden by mandatory rules applicable to the proceedings. This provision has been in the arbitration rules for some time but now finds a broader application under the reform.
Article 26 of the new CAM arbitration rules also provides for the issuance of ex parte orders, which may be confirmed, modified or revoked after the adversarial proceedings have been instituted.
In addition, if the arbitral tribunal is not yet constituted, the parties may address their requests for interim measures either to the State Court (under the new Article 818, para. 2, of the Italian Code of Civil Procedure) or to the emergency arbitrator governed by Article 44 of the new CAM arbitration rules.
Thus, there is a diachronic concurrent jurisdiction (the State Court has jurisdiction before the constitution of the arbitral tribunal, the latter from the moment of its constitution) and a synchronic concurrent jurisdiction (both the State Court and the CAM emergency arbitrator have jurisdiction before the constitution of the arbitral tribunal that will hear the merits).
Another interesting point is that new CAM arbitration rules apply to arbitral proceedings commenced on or after 1 March 2023. No relevance is given to the time of the conclusion of the arbitration agreement concerning the power to issue interim measures after (Article 26) or before the constitution of the Arbitral Tribunal (Article 44).
Indeed, the reference in the arbitration clause to the arbitration rules must be considered a mobile reference, according to Art. 832, para. 3 of the Italian Code of Civil Procedure. This is because the choice for administered arbitration is based on the parties’ trust in the arbitral institution, a trust that – as noted by Italian scholars – cannot be resolved in the choice of arbitration rules in force at the date of the arbitration clause, but must instead allow the institution to amend its rules, also to take account of changes in the applicable law, as currently occurred.
The Chamber of Arbitration of Milan made a bold choice (also given the risk of recourse for setting aside under Articles 818-bis and 829, para. 1 of the Italian Code of Civil Procedure). Nonetheless, it seems the right choice, in light of the above-mentioned full compatibility with the law rules governing institutional arbitration in Italy and their rationale. In this perspective, it is relevant that the ‘old’ CAM arbitration rules already provided for the issuance of interim measures in a provision whose scope has expanded due to the reform.
Indeed, there will be recourses to set aside the interim measures issued by CAM tribunals, and the relevant case law will be published and analysed in this Journal.