Questions and answers

Legal framework

Arbitration law

The Arbitration Law does not exist in Italy as a discrete statute. On the contrary, it is incorporated: (i) in the Italian Code of Civil Procedure (an English translation of the relevant Articles of the Italian Code of Civil Procedure is available here, on the website of the Chamber of Arbitration of Milan); (ii) in certain special laws (among them, it is worth mentioning legislative decree no. 5/2003, which contains provisions governing corporate arbitration).

Treaties and conventions

Italy is a party to: (i) the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Award; (ii) the 1961 Geneva European Convention on International Commercial Arbitration; (iii) the 1965 Washington Convention on the Settlement of Investments Disputes between States and Nationals of Other States (as well as a number of bilateral investment treaties); (iv) a number of bilateral treaties on recognition and enforcement of judgments in civil and commercial matters containing rules on the recognition of arbitral awards (the treaties in force are indexed here, on the website of Italian Ministry of Foreign Affairs and International Cooperation).

Scope of application

Italian law does not distinguish between domestic and international arbitration, nor between commercial and non-commercial disputes, whereas corporate arbitration is subject to specific rules.

Moreover, Italian law distinguishes between “rituale” and “irrituale” arbitration proceedings. In a nutshell, “rituale” arbitration is the regular arbitration that results in an enforceable award, whereas “irrituale” arbitration is an alternative arbitration that does not result in an enforceable award (in the case of “irrituale” arbitration, the award has the effect of a binding contract).

Reform

The law rules governing arbitration in Italy were reformed in 2003 (with respect to corporate arbitration) and in 2006 (with respect to general arbitration).

Italian lawmakers often discuss possible further reforms to strengthen arbitration system (the Italian text of a bill on this topic is available here), but for the time being with no result.

Arbitration Agreements

Arbitrability

Under Italian law, a dispute is capable of arbitration if the parties are free to dispose of its subject matter, with a few limitations (e.g., labour disputes and certain corporate disputes).

Validity

The arbitration agreement shall be in writing.

Separability

The principle of the separability is recognised by Italian law.

Construction

If a doubt arises as to the scope of the arbitration agreement, under Italian law it has to be construed as “extending to all disputes arising from the contract or from the relationship to which the agreement refers” (Article 808/quater of the Italian Code of Civil Procedure).

Arbitral Tribunal

Number of arbitrators

The number of arbitrators shall be odd.

Appointments of arbitrators

Under Italian law, as a general rule, the parties enjoy considerable freedom with respect to the appointment of the arbitrators (with a few exceptions, such as corporate arbitration).

Challenge of arbitrators

Italian law provides for a number of very precise grounds for challenge of an arbitrator: (i) if he or she does not have the qualifications expressly agreed by the parties; (ii) if he or she or an entity, association or company of which he or she is a director has an interest in the case; (iii) if he or she or his or her spouse is a relative up to the fourth degree or a cohabitant or a habitual table-companion of a party, one of its legal representatives or counsel; (iv) if he or she or his or her spouse has a pending suit against or a serious enmity to one of the parties, one of its legal representatives or counsel; (v) if he or she is linked to one of the parties, to a company controlled by that party, to its controlling entity or to a company subject to common control by a subordinate labour relationship or by a continuous consulting relationship or by a relationship for the performance of remunerated activity or by other relationships of a patrimonial or associative nature which might affect his or her independence; furthermore, if he or she is a guardian or a curator of one of the parties; (vi) if he or she has given advice, assistance or acted as legal counsel to one of the parties in a prior phase of the same case or has testified as a witness.

Procedure

Tribunal powers

Arbitral Tribunals are granted with Kompetenz-Kompetenz power.

Moreover, under Italian law “all issues arising in the course of the proceedings shall be decided by the arbitrators with an order which is not subject to deposit and may be revoked, unless they elect to decide by an interim award” (Article 816/bis(3) of the Italian Code of Civil Procedure).

Interim measures

Arbitral Tribunals may not issue interim measures; nonetheless, they do issue certain interim measures in the case of corporate arbitration.

Court intervention and assistance

Should the parties fail to appoint one or more arbitrators they may request the president of the Court of first instance of the seat of the arbitration to make the appointment (Article 810(2) of the Italian Code of Civil Procedure).

Should a witness refuse to appear before the Arbitral Tribunal, the latter may request the president of the Court of first instance of the seat of the arbitration to order his or her appearance before it (Article 816/ter(3) of the Italian Code of Civil Procedure).

During arbitration proceedings (and even before their commencement), the parties may request the State Courts to issue interim measures.

Multy-party arbitration

Italian law expressly regulates multi-party arbitration.

Under Article 816/quater of the Italian Code of Civil Procedure, should more than two parties be bound by the same arbitration agreement, each party may request that all or some of them be summoned in the same arbitral proceedings, if the arbitration agreement defers to a third party for the appointment of the arbitrators, if the arbitrators are appointed by agreement of all parties or if the other parties, following the appointment by the first party of an arbitrator or the arbitrators, appoint by common agreement an equal number of arbitrators or entrust to a third party their appointment.

Third-party intervention

The intervention, as well as the joinder of a third party, is allowed only with the agreement of: (i) the third party; (ii) the parties; and (iii) the Arbitral Tribunal.

Award

Requirements

The awards shall contain: (i) the name of the arbitrators; (ii) the indication of the seat of the arbitration; (iii) the indication of the parties; (iv) the indication of the arbitration agreement and of the claims of the parties as set out in the final pleadings; (v) a brief statement of the reasons; (vi) the decision of the issues; (vii) the signature of the arbitrators; (viii) the date of the signatures.

Res judicata

As from the date of its last signature the award (in the case of “rituale” arbitration) has the same effects as a judgment issued by the Court.

Recourse

The award may be challenged on grounds of nullity, revocation or third party opposition. Grounds for nullity are: (i) if the arbitration agreement is invalid; (ii) if the arbitrators have not been appointed in the proper form and manner; (iii) if the award has been rendered by a person who could not be appointed as arbitrator; (iv) if the award exceeds the limits of the arbitration agreement, or has decided the merits of the dispute in all other cases in which the merits could not be decided; (v) if the award does not comply with its requirements; (vi) if the award has been rendered after the expiry of the prescribed time limit; (vii) if during the proceedings the formalities prescribed by the parties under express sanction of nullity have not been observed and the nullity has not been cured; (viii) if the award is contrary to a previous award which is no longer subject to recourse or to a previous judgment having the force of res judicata between the parties, provided such award or such judgment has been submitted in the proceedings; (ix) if the adversarial principle has not been respected in the arbitration proceedings; (x) if the award terminates the proceedings without deciding the merits of the dispute and the merits of the dispute had to be decided by the arbitrators; (xi) if the award contains inconsistent provisions; (xii) if the award has not decided some of the issues and objections raised by the parties in conformity with the arbitration agreement.

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