The civil procedure reform has introduced some important innovations regarding arbitration in an attempt to make the institution stronger and more attractive to the parties. With the entry into force of Legislative Decree 149\/2022, Italian arbitration law is expected to take a long-awaited step forward.<\/p>\n
The following is a summary of the main changes in the field of arbitration and some brief notes on the impact they may have on the development of the institution in Italy.<\/p>\n
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One of the most significant novelties of the reform is the attribution to arbitrators of the power to order interim relief governed by the newly introduced articles 818, 818-bis<\/em> and 818-ter<\/em> of the Italian Code of Civil Procedure.<\/p>\n As is well known, Italian arbitration law has never provided arbitrators with powers to grant interim measures. In fact, unlike many other European legal systems (Switzerland, Germany, Belgium), article 818 of the Italian Code of Civil Procedure expressly provided that arbitrators could not grant attachments or other interim measures, unless otherwise provided by law. The only rule that envisaged for the arbitrators’ power to order interim relief was the one provided in the context of corporate arbitration, which allowed arbitrators to order the suspension of the effectiveness of corporate resolutions in disputes concerning the validity of shareholders’ resolutions (art. 35, paragraph 5 of Legislative Decree No. 5\/2003).<\/p>\n Following the reform, the new provision of article 818 of the Code of Civil Procedure states that: “The parties, also by reference to arbitration rules, may assign to arbitrators the power to issue interim measures in the arbitration agreement or by a written deed prior to the commencement of the arbitration proceedings<\/em>“.<\/p>\n The legislator has not set any limits on the type of interim measures available to arbitrators, who may therefore adopt any provisional measure in the same way as an ordinary judge.<\/p>\n The scope of the rule thus reveals the first and most important feature of the innovation adopted by the Italian legislature: arbitrators are invested with the power to order interim relief only by the will of the parties expressed in the arbitration agreement or, in any case, in the written document preceding the commencement of arbitration proceedings. In the absence of the express provision of the arbitrators’ power to grant interim measures, the arbitrators will not be able to order such measures, and the parties shall address the request to the ordinary judge.<\/p>\n The Italian legislator’s intervention in the matter still seems to be only partial, since the lack of attribution to arbitrators in this matter is only partially resolved.<\/p>\n The new rule also requires the parties to be more careful and conscientious when drafting arbitration clauses, since the arbitrators’ power to issue interim measures is strictly related to their express will. On the other hand, a reference to arbitration rules in the arbitration agreement integrates the will of the parties to assign the arbitrators with the power to grant interim measures, provided that the referral arbitration rules foresee the arbitrators’ power to do so.<\/p>\n The provision of article 818 of the Code of Civil Procedure then states that the arbitrators\u2019 powers to grant interim measures is exclusive, thus eliminating the concurrent competence of the ordinary courts. However, prior to the commencement of arbitration proceedings, the competence to issue interim measures continues to remain with the ordinary courts, pursuant to article 669-quinquies<\/em> of the Code of Civil Procedure.<\/p>\n As regards the scrutiny of the arbitrators’ actions in the matter of interim measures, the new rule provides for the possibility of a claim before the court of appeal. The reform introduces, in fact, article 818-bis<\/em>, which reads as follows: “An appeal pursuant to article 669-terdecies may be lodged against an order of the arbitrators granting or refusing an interim measure with the court of appeal in whose district the seat of arbitration is located, on the grounds set out in the first paragraph of article 829, mutatis mutandis, and for contrariety to public policy<\/em>“.<\/p>\n It is clear, therefore, that the possibility to bring a claim is limited to the grounds envisaged in the list provided in article 829, paragraph 1 of the Code of Civil Procedure, insofar as they are compatible, as well as to the case of contrariety to public policy. It should be noted that the grounds of appeal against the award set forth in article 829 of the Code of Civil Procedure also include an appeal for breach of the rules of law relating to the merits of the dispute if this possibility is expressly provided for by the parties. By contrast, in the case of a claim against the arbitrators’ order on interim measures, the legislator has not established a similar provision limiting the judge’s intervention only to errors of major importance.<\/p>\n The claim may be brought both against the order granting the application and against the order rejecting the requested interim measures.<\/p>\n Finally, a rule dedicated to the enforcement of the interim measures granted by the arbitrators is introduced. According to the new article 818-ter<\/em>, “The implementation of the interim measures granted by arbitrators is governed by article 669-duodecies and is carried out under the control of the court in whose district the seat of arbitration is located or, if the seat of arbitration is not in Italy, the court of the place where the provisional measure is to be implemented<\/em>“. It is clear that the implementation of interim measures issued by arbitrators cannot be done without the intervention of the ordinary judge given the absence of coercive powers in the hands of the arbitrators, as private subjects. To ensure the proper implementation of the measure granted by private judges, the mechanism of support by the state court is introduced.<\/p>\n <\/p>\n It is also of considerable importance the aspect of translatio iudicii<\/em> on which the reform intervened with the newly introduced article 816-bis. The new provision states that “the request for arbitration shall produce the substantive effects of the court claim and maintain them in the cases provided for in article 819-quater<\/em>.” This expressly confirms the equivalence of the substantive effects of the request for arbitration to those of the court action. As a result of this amendment, in the event that the jurisdiction of the ordinary judge is denied in favour of the arbitrator or vice versa, there is a possibility of preserving the substantive and procedural effects of the respective requests, through the establishment of the new proceedings (before the arbitrators or the ordinary judge) within three months from the res judicata<\/em> of the first instance ruling declining the jurisdiction of the state judge or of the arbitrators. Failure to comply with the time limit shall result in the extinction of the process.<\/p>\n The rule of article 819-quater<\/em> further provides that evidence gathered in the trial before the judge or arbitrator declared not competent may be evaluated as elements of proof in the resumed proceedings.<\/p>\n <\/p>\n To guarantee the independence and impartiality of the arbitrators, article 810 of the Code of Civil Procedure has been supplemented with the rule requiring the president of the court, called upon to appoint the arbitrators, to make the appointment in accordance with criteria that ensure transparency, rotation and efficiency and, to this end, notice of the appointment is posted on the website of the judicial office.<\/p>\n Disclosure obligations are also provided for arbitrators who, upon accepting the appointment, under penalty of nullity, must make a declaration stating any relevant circumstance pursuant to article 815 of the Code of Civil Procedure, paragraph 1, or the non-existence thereof.<\/p>\n The new rule also provides that the arbitrator must renew the declaration in the presence of circumstances that have arisen. In the event of failure to make a declaration or omission of circumstances legitimising the objection, the party may request, within ten days of the acceptance or discovery of the prejudicial circumstances, the removal of the arbitrator in the manner set forth in Article 813-bis of the Code of Civil Procedure.<\/p>\n Lastly, “other serious reasons of convenience, such as to affect the arbitrator’s independence or impartiality<\/em>” have been added to the list of grounds for objection under article 815 of the Code of Civil Procedure, leaving open the list of relevant circumstances that could potentially influence the parties’ assessment regarding the appointment of arbitrators.<\/p>\n <\/p>\n Article 822 of the Code of Civil Procedure devoted to the rules for deliberation has been supplemented with an important provision concerning arbitration with international elements, stating that \u201cwhen the arbitrators are called upon to decide according to the rules of law, the parties, in the arbitration agreement or by written deed prior to the commencement of the arbitration proceedings, may indicate the foreign rules or law as the law applicable to the merits of the dispute. Failing this, the arbitrators shall apply the rules or law identified under the conflict criteria deemed applicable\u201d<\/em>.<\/p>\n The legislature has thus opted for a partial restoration of what was provided for in the former article 837 of the Code of Civil Procedure, thereby emphasising the importance of the parties’ autonomy in choosing the law applicable to the merits of the dispute submitted to the arbitrators.<\/p>\n <\/p>\n The legislator also intervenes in the matter of the long term for challenging the award. It amends the second paragraph of article 828 of the Code of Civil Procedure, which before that intervention provided that “the challenge of the award is no longer admissible one year after the date of the last signature<\/em>“. With the reform, this term is shortened to six months, bringing it to the same duration as the long term provided for appeals against judgments of ordinary courts (article 327 of the Code of Civil Procedure).<\/p>\n Therefore, following the amendment, the challenge for nullity of the arbitral award is possible within 90 days from the notification of the award (short time limit for challenging under the first paragraph of article 828 of the Code of Civil Procedure, which has remained unchanged) and in any case no later than six months from the date of the last signature (new long term under the second paragraph of article 828 of the Code of Civil Procedure).<\/p>\n <\/p>\n The reform puts an end to the discussion in doctrine and jurisprudence as to whether the decree on the recognition of foreign awards rendered pursuant to article 839 of the Code of Civil Procedure gives enforceable effect to such award, or whether the latter, in order to become enforceable, must await the expiry of the term for opposition or, if opposition is lodged, the rejection order pursuant to art. 840 of the Code of Civil Procedure.<\/p>\n The legislator has specified in paragraph 4 of article 839 of the Code of Civil Procedure that the president of the court of appeal called upon to grant the exequatur to the foreign award, having ascertained the formal regularity of the award, shall declare by decree its immediate enforceability.<\/p>\n In the event of an opposition against the decree recognising or denying the effectiveness of the foreign award, the possibility is given to suspend the enforceability, at the request of the opponent and when serious reasons exist (article 840 paragraph 2 of the Code of Civil Procedure).<\/p>\n <\/p>\n Lastly, a significant novelty concerning corporate arbitration should be noted: the provisions of articles from 34 to 37 of Legislative Decree No. 5\/2003 have been included in the Code of Civil Procedure in order to meet the need for an organic rearrangement of the subject matter, with the consequent abolition of the aforementioned previous legislative act.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The civil procedure reform has introduced some important innovations regarding arbitration in an attempt to make the institution stronger and more attractive to the parties. With the entry into force of Legislative Decree 149\/2022, Italian arbitration law is expected to take a long-awaited step forward. The following is a summary of the main changes in […]<\/p>\n","protected":false},"author":125,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50],"tags":[],"_links":{"self":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts\/21749"}],"collection":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/users\/125"}],"replies":[{"embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/comments?post=21749"}],"version-history":[{"count":9,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts\/21749\/revisions"}],"predecessor-version":[{"id":31255,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts\/21749\/revisions\/31255"}],"wp:attachment":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/media?parent=21749"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/categories?post=21749"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/tags?post=21749"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Translatio iudicii<\/em><\/h2>\n
Duty of disclosure and impartiality of arbitrators<\/h2>\n
Choice of applicable law<\/h2>\n
Long term for challenging the award<\/h2>\n
The immediately enforceable effect of the presidential decree ex art. 839 c.p.c.<\/h2>\n
Codification of Corporate Arbitration<\/h2>\n