Commercial arbitration practitioners sometimes face problems arising from the conduct of a party that, recalcitrant to see the dispute decided by the arbitrators as agreed, engages in conduct with the apparent intent to prevent or hinder and slow down, the arbitral proceedings.
The leading arbitral institutions are also aware of this and have included in their rules the admonition represented by the express provision that the parties must conduct themselves in good faith and fair dealing.
The subject has not, however, found particular attention in Italy. For this reason, it seems appropriate to address it.
Read more “Breach to the arbitral agreement”
Much has been written, and much will still be written, about the recent reform of Italian arbitration law. The undeniable merit of this reform is that it brings the Italian system closer to that of other jurisdictions sharing the same civilizational perspective. The changes that have (finally) allowed arbitrators to issue interim and precautionary measures, as well as those concerning the disclosure and disqualification of arbitrators, should indeed be interpreted in this sense. Italy is now among the most advanced jurisdictions, with changes that include the choice of applicable law, allowing parties and arbitrators to apply non-state rules such as lex mercatoria.
Read more “Some thoughts on the reform of Italian arbitration law”
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).
Read more “Arbitration law reform and new CAM rules”
2022 has been an exciting year for Italian arbitration practitioners.
First, in 2022 was enacted the reform of Italian arbitration law, which will enter into force on 1 March 2023. It is the first significant reform since that passed in 2006. It is worth immediately noting that:
- Italian arbitration law will impose specific disclosure duties on the appointed arbitrators. The influence of international best practices is evident, and the fulfilment of the said duties will likely avoid the occurrence of events such as those discussed in BEG v. Italy, and
- Italy finally leaves the restricted club of jurisdictions not allowing arbitrators to issue interim measures.
Second, Italian practitioners had to brush up on seasoned precedents on the arbitrability of disputes involving a party affected by trade sanctions. Italian Courts dealt with this matter concerning the sanctions against certain Iraqi entities; the same principles will likely apply to the sanctioned Russian entities.
Third and eventually, Italian institutional arbitration is in sharp expansion. The time is still far when Italian administered arbitrations will outnumber ad hoc proceedings. Nonetheless, Italian arbitral institutions, particularly the leading institution (Milan Chamber of Arbitration), significantly contributed to shaping the landscape for domestic and international cases.
The sanctions adopted against certain Russian entities and individuals after the invasion of Ukraine by the Russian Federation might raise an issue of arbitrability of disputes between sanctioned entities and third parties.
This is not a new subject for practitioners of international arbitration, as it has been addressed in the past when the international community adopted sanctions, for example, against Iraq or Iran. The current sanctions are somehow different (for example, they are not adopted by the United Nations) and are more similar to those adopted against the same Russian Federation following the annexation of Crimea.
The issue now requires further attention, either because of the scope of the new sanctions or because of the relevance in the international trade of several of the sanctioned entities.
Read more “Sanctions and arbitrability”
Bilateral investment treaties (BIT) are international agreements providing the terms, conditions and protections for private investment by individuals and entities of a contracting State (the home State) in the other Contracting State (the host State).
The proliferation of BITs at the turn of the 20th century has transformed the international investment environment, as they represent a crucial element of globalization.
As far as it is known, approximately 3,000 BITs were signed, and more than 2,000 are in force.
Italy is a party to 102 BITs (and 77 treaties with investment provisions, including the EU treaties). Turkiye is a party to 132 BITs (and 22 treaties with investment provisions).
On 22 March 1995, Italy and Turkiye signed their BIT, which entered into force on 2 March 2004. Its English text is available here.
Read more “The Italian-Turkish BIT”
As far as the relationship between arbitration and Court proceedings is concerned, Italian law applies the s.c. parallel paths doctrine. This doctrine is laid down by Article 819-ter of the Italian Code of Civil Procedure, whereby “the jurisdiction of arbitrators is not excluded by the fact that the same case is pending before the State Courts, nor by the fact that a related case is pending before the State Courts”.
This principle applies in several cases, some of which relate to corporate matters. For this reason, a recent decision of the Court of Milan is of particular interest (Court of first instance of Milan, 12 July 2022, No. 6095, Italian text available here), as the judge failed to apply the said principle.
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The Court of Appeal of Milan and the Court of first instance of Milan recently issued two decisions on the issue of Court’s and attorney’s fees in case an objection to the Court’s jurisdiction is granted, as the parties entered into an arbitration agreement.
Read more “Court’s costs and fees”
A recent decision issued by the Court of first instance of Vicenza (Court of first instance of Vicenza, decision No. 1102 of 27 June 2022, Italian text available here) is of great interest for the unprecedented conclusion reached by the Court.
Read more “Arbitration and payment order”
Default arbitration proceedings, or – with a more accurate wording – arbitration proceedings in which a situation occurs corresponding to the situation giving rise to default proceedings in State Courts, is a topic of relevant practical interest.
Italian scholars dealt with that topic, developing three theses. The first thesis holds that the above situation may occur in arbitration proceedings. The second thesis, on the contrary, is that this situation cannot occur. The third thesis, which is the more persuasive, is that it is necessary to identify the law rules concerning default proceedings before State Courts, which are compatible with arbitration proceedings.
On the other hand, Italian case law tends to repeat the doctrine that default proceedings rules do not apply in arbitration proceedings.
In this framework, two recent decisions, both issued in proceedings for the setting aside of Italian domestic awards, are fascinating, as the awards were issued in ‘default’ arbitration proceedings.
Read more “Default arbitration proceedings”