Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.
Results: 4 Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
 
Italy
The parties are entitled to state in the arbitration agreement how the arbitral tribunal should be appointed, including the number of arbitrators (one or more, provided that there is an uneven number); they are also entitled to appoint the arbitrators directly in the arbitration agreement. In case of omission by the parties, or in case of the appointment of an even number of arbitrators, the president of the court at the seat of the arbitration is empowered to appoint the missing arbitrator(s).

If the arbitration agreement provides for the arbitrators to be appointed by the parties, then according to Article 810 of the Code of Civil Procedure (CCP), the claimant must notify its appointment to the defendant in writing, asking the defendant to proceed with the appointment of its arbitrator(s). The defendant then has 20 days to appoint its arbitrator(s).

If the defendant fails to do so, the claimant shall file a pleading with the president of the court at the seat of the arbitration, who will appoint the missing arbitrator(s) on behalf of the defendant. This procedure also applies where the arbitration agreement provides for the arbitrators to be appointed by judicial authority or by a third party which fails to do so.

The rules of arbitral institutions may provide otherwise; when these are applied pursuant to the parties’ agreement, their provisions shall prevail over those of the CCP in case of any divergence. These rules commonly grant the powers pertaining to the president of the court at the seat of the arbitration to the body governing the arbitral institution.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
Italy
According to Article 809 of the CCP, an arbitral tribunal may consist of one or more arbitrators, provided that there is an uneven number. Where the arbitral tribunal is composed of an even number of arbitrators, the president of the court at the seat of the arbitration is empowered to appoint the missing arbitrator.

Anyone can sit as an arbitrator, as no specific qualifications are required. It is in the parties’ interests to appoint arbitrators who are qualified to decide on the relevant dispute; and it is in the interests of the arbitrators’ professionalism to refuse the appointment if they do not have the skills and knowledge to decide on the relevant dispute.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
Italy
According to Article 815 of the CCP, an arbitrator can be challenged on a number of grounds, which basically fall within three categories:

  • The arbitrator lacks qualifications expressly agreed upon by the parties;
  • There is a conflict of interest; or
  • The arbitrator’s impartiality is not guaranteed. Article 815 does not expressly mention impartiality, but rather lists several situations which are deemed to constitute grounds to challenge an arbitrator, relating to:
    • parental or professional relationships with a party or its counsel; and
    • pending litigation or “serious enmity” with a party or its counsel.

Insofar as restrictions are concerned, a party cannot challenge an arbitrator whom it has appointed, unless the grounds for challenge were unknown to that party at the time of the appointment. In addition, the challenge must be brought before the court at the seat of the arbitration within 10 days of the appointment, or within 10 days of learning of the grounds for challenge.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.4
If a challenge is successful, how is the arbitrator replaced?
 
Italy
If the arbitrator removed was appointed by one party, that party will have the right to replace him or her. If the arbitrator was appointed by an authority, the authority will take care of the replacement.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
Italy
An arbitrator must:

  • be and remain independent of and impartial from the parties;
  • conduct the arbitration in a fair and loyal manner;
  • maintain confidentiality concerning the arbitration; and
  • timely deliver the award, complete with reasoning.

Under professional conduct rules, a lawyer acting as arbitrator cannot engage in professional relationships with the parties to the arbitration until two years have elapsed since the end of the arbitration. The same applies to partners of the arbitrators and other lawyers who share the same premises as the arbitrators.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
Italy
(a) Procedure, including evidence?

Pursuant to Article 816-bis of the CCP, the parties are free to determine the procedural rules that are applicable to the arbitration, including by reference to institutional rules. Failing an agreement by the parties, and for all matters not specifically agreed by them, the arbitrators shall proceed in the manner that they deem most suitable.

The same principles apply in relation to evidence. Specifically, the arbitrators cannot compel a witness to appear before them, but can apply to the court for a compelling order.

The arbitrators are also allowed to appoint experts and to seek information from public authorities.

(b) Interim relief?

Article 818 of the CCP expressly prevents arbitrators from granting freezing orders or other interim measures, except where expressly provided for by law. In corporate arbitrations, arbitrators may stay the effects of a resolution.

(c) Parties which do not comply with its orders?

Generally speaking, an arbitrator does not have coercive powers against the parties. However, failure by a party to comply with procedural orders or directions may result in adverse inferences (if related to evidence) or adverse cost consequences.

(d) Issuing partial final awards?

There are no specific rules concerning partial awards; thus, the arbitrators are free to issue partial awards if they deem this suitable.

(e) The remedies it can grant in a final award?

Provided that the matter is arbitrable, the arbitrators may grant any remedy provided for by law.

(f) Interest?

Again, provided that the matter is arbitrable, the arbitrators may award interest in accordance with the law.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
Italy
There are no specific rules in the CCP governing a party’s failure to participate in an arbitration. It is commonly held that the provisions of the CCP concerning default in court proceedings do not apply in arbitrations. Therefore, provided that the non-participating party has received adequate notice of commencement of the arbitration, its failure to appear will not prevent the issue of the award.

As noted under question 24, if a party fails to appoint the arbitrator of its choice, the appointment will be made by the appointing authority elected in the arbitration agreement or by the court.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
8.8
Are arbitrators immune from liability?
 
Italy
Arbitrators are not immune from liability. Pursuant to Article 813-ter of the CCP, arbitrators may be held liable for damages suffered by the parties in case of:

  • omission or delay in the proceedings caused by fraud or gross negligence;
  • omission or delay in rendering the award caused by fraud or gross negligence; or
  • resignation without proper cause.

In the absence of fraud, an arbitrator’s liability is capped at three times his or her fees.

The arbitrators are not jointly and severally liable to the parties. Each arbitrator is liable only for his or her own acts or omissions.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale