Some thoughts on the reform of Italian arbitration law

by Roberto Olivaart. 806 It. code civ. proc., art. 813/bis It. code civ. proc., art. 815 It. code civ. proc., art. 818 It. code civ. proc.Posted on No Comments

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.

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Arbitration law reform and new CAM rules

by Roberto Olivaart. 818 It. code civ. proc.Posted on No Comments

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).

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Court’s costs and fees

by Roberto Olivaart. 806 It. code civ. proc.Posted on No Comments

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.

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Arbitration and payment order

by Roberto Olivaart. 633 It. code civ. proc., art. 806 It. code civ. proc., art. 819/ter It. code civ. proc.Posted on No Comments

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.

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Default arbitration proceedings

by Roberto Olivaart. 829 It. code civ. proc.Posted on No Comments

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.

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Parallel proceedings

by Roberto Olivaart. 817 It. code civ. proc., art. 819/ter It. code civ. proc.Posted on One Comment

A recent decision issued by the Court of Appeal of Milan (No. 1946 of 23 June 2021, Italian text available here) deals with a topic of great interest and practical relevance. This topic concerns the relationship between arbitration proceedings and parallel proceedings in a Court of law (which in that particular case were criminal proceedings).

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Multiparty arbitration

by Roberto Olivaart. 816/quater It. code civ. proc., art. 819 It. code civ. proc.Posted on No Comments

Both from a historical point of view and in a number of its actual implementations, arbitration is a bilateral dispute resolution mechanism: in other words, it concerns disputes between two parties, a claimant and a respondent.

It is not by chance that, taking account of the above binary structure, the default rule on the appointment of the arbitral tribunal, contained in Article 810 of Italian Code of Civil Procedure provides that each party appoints an arbitrator and that the chair is jointly appointed by the party-appointed arbitrators.

However, disputes submitted to arbitration (in particular, to international arbitration) might have a more complex structure, either because there are more than two parties to the relevant relationship, or because after the execution of the arbitration agreement the parties increase in number: for instance, in case of succession or inheritance when two or more successors or heirs succeed a single party.

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Public policy

by Roberto Olivaart. 829 It. code civ. proc., art. 840 It. code civ. proc.Posted on No Comments

A recent decision issued by the Italian Supreme Court (decision No. 1788 of 28 January 2021, Italian text available here) deals with the issue of public policy and its relevance in arbitration matters.

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Corporate arbitration

by Roberto Olivaart. 34 decree no. 5/2003Posted on No Comments

Italian law provisions on corporate arbitration (enacted by legislative decree no. 5 of 17 January 2003) entails a number of interpretative issues, possibly the reason for the limited recourse to arbitration in corporate matters.

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Separability presumption

by Roberto Olivaart. 808 It. code civ. proc., art. 34 decree no. 5/2003Posted on No Comments

Separability presumption is universally applied, as the relevant doctrine spread all over the world during the first half of XX century.

In the words of Italian lawmakers, “The validity of the arbitration clause must be evaluated independently of the underlying contract” (Article 808, para. 2, of the Italian Code of Civil Procedure).

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