Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
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Results: 4 Answers
International Arbitration
1.
Legal framework
1.1
What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
 
Italy
Arbitration in Italy is governed by the Code of Civil Procedure (CCP), which is the main source of procedural rules for litigation and arbitration. The rules applicable to arbitral proceedings are mainly set out in Articles 806 to 832 of the CCP: they apply to arbitral proceedings with their seat in Italy, without prejudice to relevant international conventions in force. Articles 833 to 838 were repealed in 2006, and Articles 839 and 840 of the CCP regulate the exequatur of foreign awards.

Under the CCP, parties are entitled to choose specific procedural rules, either:

  • by setting such rules directly or by reference to national laws or institutional arbitration rules; or
  • by empowering the arbitrators to define which rules will apply to the dispute.

Such powers may also be exercised to fill any gaps in the statutory regime.

These rules constitute the general framework for arbitral proceedings and their scope is limited only by international conventions and by law. This is the case, for example, for corporate arbitral proceedings (ie, arbitral proceedings between shareholders and/or shareholders and the company, or between corporate bodies, where an arbitration clause is included in the articles of association). These arbitral proceedings are regulated by Articles 34 to 37 of Italian Legislative Decree 5 of 17 January 2003; such provisions are in addition to those of the CCP and will prevail in case of any conflict.

Special provisions also apply to, among other things:

  • arbitral proceedings involving employers and employees (which must be allowed either by law or by national collective employment agreements, which may also provide procedural rules where necessary); and
  • arbitration involving private individuals and/or companies on the one hand and public entities on the other (which are regulated by Italian Legislative Decree 50 of 18 April 2016, the Code of Public Procurement, entitling parties to a public procurement contract to opt for the specific arbitration procedure set out by the code).

The Italian legal system also provides for ‘arbitrato irrituale’, or ‘contractual arbitration’. If the parties in the arbitration agreement expressly qualify the arbitration as ‘arbitrato irrituale’, then the award will have the effects of a contract, rather than the effects of a judgment, and the grounds for challenge will be different. All answers herein refer to standard arbitration and not to arbitrato irrituale.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
1.2
Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
 
Italy
The CCP was amended in 2006: insofar as international arbitration is concerned, this amendment resulted in the repeal of the relevant rules.

The definition provided before the repeal stated that international arbitration occurred when, at the date of signature of the arbitration clause or agreement, either:

  • at least one party had its residence or effective seat abroad; or
  • a significant part of the obligations arising from the relationship that was the subject of the dispute were to be performed abroad.

Despite the absence of an explicit definition, international arbitration is still regarded as arbitration with international elements, such as:

  • the nationality of the parties;
  • the place of performance of the relevant obligations;
  • the place where the damage occurred; or
  • the applicable law.

This is not the only definition missing from the CCP; another term which is not defined is ‘foreign award’. The common understanding of this term is an award rendered in arbitral proceedings with their seat abroad, outside the Italian territory.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
1.3
Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
 
Italy
Although the Italian arbitration legislation is not based on the UNCITRAL Model Law on International Commercial Arbitration, it does not substantially differ therefrom. Parties and arbitrators (when empowered by the parties and/or by the applicable procedural law, which might be either national law or the rules of an arbitral institution) are nevertheless entitled to choose to apply the UNCITRAL Model Law to the arbitral proceedings.

One major difference between the UNCITRAL Model Law and the CCP concerns interim measures. Unlike the UNCITRAL Model Law, the CCP (Article 818) prevents arbitrators from granting interim measures, unless otherwise provided by law. This means that if interim measures are needed, the parties must seek them from the relevant court, regardless of the fact that the dispute is subject to arbitration on the merits.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
1.4
Are all provisions of the legislation in your jurisdiction mandatory?
 
Italy
The Italian rules on arbitration can be divided into two main categories.

The first category encompasses mandatory rules which cannot be waived by the parties. These concern issues ranging from the validity of the arbitration agreement to challenge and exequatur of the arbitral award.

The second category encompasses rules on the management of the arbitral proceedings, concerning everything from the appointment of the arbitrators to the laws applicable to the proceedings and the merits. These rules apply if the parties – or the arbitrators, where they have been empowered to do so by the parties – do not otherwise agree on how the arbitral proceedings should be conducted.

The main rule in this category is Article 816-bis of the CCP, which states that, unless the parties agree otherwise in the arbitration agreement or before commencement of the proceedings, the arbitrators are entitled to conduct the procedure as they deem appropriate, provided that each party is granted a reasonable and equivalent opportunity to be heard, pursuant to the so-called ‘adversarial principle’ (‘principio del contraddittorio’).

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
1.5
Are there any current plans to amend the arbitration legislation in your jurisdiction?
 
Italy
In 2016 the minister of justice set up a special committee to study relevant amendments to alternative dispute resolution (ADR) measures, including arbitration.

In 2017 a proposed amendment to the CCP was issued for discussion. One of its main aims was to empower arbitrators to issue interim measures, although only in the course of institutional arbitral proceedings. However, the relevant parliamentary term expired without conversion of the proposal into a bill that would amend the CCP.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
1.6
Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
 
Italy
Italy signed the New York Convention without reservations.

The convention was ratified by Law 62 of 19 January 1968, effective from 1 May 1969.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
1.7
Is your jurisdiction a signatory to any other treaties relevant to arbitration?
 
Italy
Italy is a party to other treaties relevant to arbitration, including the European Convention on International Commercial Arbitration signed in Geneva on 21 April 1961, and the Convention on the Settlement of Investment Disputes signed in Washington on 19 March 1965.

The Geneva Convention was ratified by Law 418 of 10 May 1970 and applies to arbitral disputes involving parties that reside or have their seat in one of the 27 contracting states to the convention. It empowers the parties to choose between institutional or ad hoc arbitration. In ad hoc arbitration, the president of the chamber of commerce of the place of residence or seat of the defaulting party, or of another place agreed upon by the parties, and the Special Committee recognised under the annex to the convention are empowered to intervene if the parties fail to appoint the arbitrators or do not reach agreement on the applicable rules. The same procedure will apply where the parties choose institutional arbitration without agreeing on the relevant arbitral institution, and if the parties have not chosen between ad hoc and institutional arbitration.

The Washington Convention was ratified by Law 1093 of 10 May 1970. Its most well-known effect was the establishment of the Investment Centre for Settlement of Investment Disputes (ICSID). This is an ADR institution for the resolution of disputes between contracting states and citizens (whether natural persons or legal entities) of other contracting states, where the dispute concerns an investment of a citizen in another contracting state and where both parties have agreed in writing to refer the dispute to the ICSID.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
2.
Arbitrability and restrictions on arbitration
2.1
How is it determined whether a dispute is arbitrable in your jurisdiction?
 
Italy
The arbitrability of disputes is determined based on their subject matter: disputes concerning disposable rights are arbitrable, whereas disputes concerning rights which are not disposable are not (see Article 806 of the Code of Civil Procedure (CCP)), save as otherwise provided by law. Generally speaking, disposable rights can be assigned, transmitted, waived or settled; the disposable nature of a right may be clarified either by law or by case law.

As an example, disposable rights include matters regarding the performance of an agreement, whereas rights which are not disposable might relate to criminal law, personality and certain family law matters.

According to Article 808-bis of the CCP, non-contractual disputes may also be settled through arbitration.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
2.2
Are there any restrictions on the choice of seat of arbitration for certain disputes?
 
Italy
According to Article 816 of the CCP, the seat of arbitration proceedings shall be in Italy. This is the only restriction provided by law.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
3.
Arbitration agreement
3.1
What are the validity requirements for an arbitration agreement in your jurisdiction?
 
Italy
The Code of Civil Procedure (CCP) (Articles 807 and 808) identifies two types of arbitration agreement:

  • the arbitration clause (‘clausola compromissoria’), which is included in an agreement between the parties and refers to future disputes arising from that same agreement; and
  • the arbitration agreement (‘compromesso’), which is executed after the relevant dispute has arisen with the aim of referring that specific dispute to arbitration.

Both the arbitration clause and the arbitration agreement must be in writing (if not, they are null and void). In this regard, it is understood that agreements exchanged by telegraph, telex, fax and/or certified email are to be deemed as made in writing. The arbitration agreement, unlike the arbitration clause, must state and clarify the object of the dispute.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
3.2
Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?
 
Italy
Article 808 of the CCP clarifies that the validity of arbitration clauses is not affected by the validity of the contract in which they are included; this means that the arbitration clause is separable from the main contract.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
3.3
Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?
 
Italy
In the absence of an explicit choice by the parties, the arbitrators are empowered to determine the seat of the arbitral proceedings.

If the arbitrators fail to do so, the seat of the arbitral proceedings shall be the place where the arbitration clause or agreement was signed. If the signature occurred abroad, then the seat will be Rome, according to Article 816 of the CCP.

Unless the arbitration clause or agreement provides otherwise, the arbitrators are entitled to hold hearings, carry out investigations, issue orders and decisions and sign the award in places other than the seat of the arbitral proceedings (including abroad).

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
4.
Objections to jurisdiction
4.1
When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
 
Italy
According to Article 817 of the Code of Civil Procedure (CCP), any objection to the jurisdiction of the arbitral tribunal must be raised no later than the first procedural activity following the arbitrators’ acceptance of their appointment. In other words, there is no need to raise such objection at the time of appointment of the arbitrators.

Such objection must be raised in writing, expressly and unambiguously, either:

  • in the first pleading to be filed after the arbitrators’ acceptance; or
  • in the first hearing following the arbitrators’ acceptance, whichever is the earlier.

In case of failure to comply with the above time limit, the award cannot be challenged for lack of jurisdiction.

In case of objections grounded on facts which have arisen during the proceedings, the objection must be raised in the first defence after such fact has arisen.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
4.2
Can a tribunal rule on its own jurisdiction?
 
Italy
The tribunal can rule on its own jurisdiction. More precisely, Articles 817 and 819-ter of the CCP enshrine the so-called ‘competence-competence’ rule.

Pursuant to these provisions, the arbitrators are entitled to verify and rule on both their jurisdiction and the validity, scope and content of the arbitration agreement (Article 817 of the CCP). National courts must refrain from ascertaining the validity of the arbitration agreement pending arbitral proceedings (Article 819-ter of the CCP).

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
4.3
Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
 
Italy
As discussed under question 14, Articles 817 and 819-ter of the CCP enshrine the so-called ‘competence-competence’ rule. Therefore, when arbitral proceedings are pending, national courts cannot decide on the validity or effectiveness of the arbitration agreement, and therefore on the jurisdiction of the arbitral tribunal.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
5.
The parties
5.1
Are there any restrictions on who can be a party to an arbitration agreement?
 
Italy
Any natural person or legal entity can be a party to an arbitration agreement, provided that it is entitled to dispose of the rights that are the subject matter of the arbitral proceedings.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
5.2
Are the parties under any duties in relation to the arbitration?
 
Italy
The only duty of the parties is to pay the costs of the arbitration proceedings and the fees of the arbitrators.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
5.3
Are there any provisions of law which deal with multi-party disputes?
 
Italy
Multi-party disputes are regulated under Article 816-quater of the Code of Civil Procedure (CCP), which provides that when two or more parties are bound by the same arbitration agreement, each party is entitled to sue one or all other parties in the same arbitral proceedings only if:

  • the arbitration agreement defers the appointment of the arbitrators to a third party;
  • all parties agree on the person(s) to appoint as arbitrator(s); or
  • the respondents agree on the appointment of an equal number of arbitrators as the claimant(s) or agree to have the arbitrator(s) appointed by a third party.

Otherwise, the claimant must start separate arbitration proceedings against each respondent, unless the relevant law prescribes that all parties to a dispute must participate in a single action. In this case, the arbitral proceedings cannot proceed and, as a consequence, the competent courts will regain jurisdiction over the relevant dispute.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
6.
Applicable law issues
6.1
How is the law of the arbitration agreement determined in your jurisdiction?
 
Italy
There is no specific rule on how to determine the law of the arbitration agreement. The preferred approach is to apply the conflict of laws rules of the forum. In Italy, save for international conventions that might be in force, reference must be made in this regard to Law 218 of 31 May 1995.

As a consequence, generally speaking, the law applicable to a contract is that chosen by the parties. Although the arbitration agreement is separable from the contract in which it is included (see Article 808 of the Code of Civil Procedure (CCP)), the law applicable to the arbitration agreement must be that which the parties have chosen as applicable to the contract.

According to conflict of laws rules, the parties are also entitled to apply different laws to different portions of the agreement. It is therefore possible that the arbitration agreement may be subject to a specific law which is not the substantive law governing the contract.

If no choice of law has been made at all, the law of the arbitration agreement will be determined according to further criteria set out in the conflict of laws rules.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
6.2
Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
 
Italy
According to Article 822 of the CCP, arbitrators must decide applying rules of law, unless the parties have agreed that they will decide ex aequo et bono.

The parties are entitled to choose the substantive law applicable to the dispute or may empower the arbitrators to rule thereon. Where the parties have chosen the applicable law, the arbitral tribunal must follow the parties’ agreement.

Since the CCP was amended in 2006, it no longer specifies how the arbitral tribunal will determine the substantive law to be applied to the dispute; however, the prevailing view is that they should do so by applying conflict of laws provisions.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
7.
Consolidation and third parties
7.1
Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
 
Italy
Although consolidation of separate arbitrations into a single proceeding is not covered by the Code of Civil Procedure (CCP), it is generally deemed acceptable upon the parties’ agreement and provided that the arbitration agreement, the parties and the arbitrators are all the same.

Most rules of arbitration institutions deal with this issue. For example, the rules of the Milan Chamber of Arbitration (one of the main Italian arbitral institutions) empower the arbitrators to decide whether to consolidate related arbitral proceedings.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
7.2
Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
 
Italy
Joinder of additional parties to a pending arbitration is regulated under Article 816-quinquies of the CCP. Provided that the ‘original’ parties, the arbitrators and the third party are in agreement, a third party is entitled to join pending arbitral proceeding either voluntarily or upon the request of another party. However, any third party with an interest in the dispute is always entitled to join the proceedings to support the position of a party; and similarly, the parties are always entitled to require any necessary co-party to be part of the proceedings.

Concerns have been raised in this regard, based on the fact that the third party cannot appoint an arbitrator of its choice; as it will have had no input in the appointment of the arbitrators, this might affect the integrity of the arbitral tribunal. This is still an open point.

The rules of the Milan Chamber of Arbitration delegate any decision on the joining of a third party to the arbitral tribunal, which will take due account of the position of each party, as well as all relevant circumstances of the case.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
7.3
Does an arbitration agreement bind assignees or other third parties?
 
Italy
Generally speaking, third parties are not bound by an arbitration agreement.

The extension of arbitration agreements to third parties (including assignees of contracts) is possible only if provided for by law, either expressly or pursuant to interpretation by the courts.

As an example of this, statutory arbitration clauses bind shareholders and corporate bodies according to Italian Legislative Decree 5 of 17 January 2003. It might be argued that the shareholders have implicitly agreed on the arbitration clause included in the articles of association, but this argument is much weaker for corporate bodies which have simply accepted an appointment.

Insofar as the assignment of a contract is concerned, according to case law, the assignee is bound by the arbitration clause only in case of express agreement, as the arbitration clause is separate from the contract in which it is included. If the assignment concerns a debt, the rules vary: the debtor is entitled to file arbitral proceedings against the assignee (otherwise, the debtor would be deprived of the right to start arbitral proceedings, based on an agreement between the assignee and the original creditor to which the debtor is not a party); whereas the assignee is not bound by the arbitration clause.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
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
9.
The role of the court during an arbitration
9.1
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
 
Italy
If the court holds that a valid arbitration agreement exists, it must decline jurisdiction and refer the dispute to arbitration. Technically, the court will not stay the proceedings, but issue a judgment.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
9.2
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
 
Italy
In relation to an arbitration seated in Italy, the national courts:

  • have exclusive jurisdiction to grant interim protective measures and freezing orders;
  • will appoint the arbitrators in case of failure to do so by a party or by the appointing authority chosen by the parties;
  • will assist the arbitrators in compelling witnesses;
  • may extend the deadline for issuance of the award in ad hoc arbitrations;
  • will adjudicate challenges to arbitrators;
  • will settle disputes concerning the arbitrators’ fees; and
  • will issue the exequatur of the award.

In relation to arbitrations seated outside Italy, in principle, the court’s powers are limited to the issuance of freezing orders and other interim protective measures, provided that such measures must be executed in Italy.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
9.3
Can the parties exclude the court's powers by agreement?
 
Italy
In principle, all provisions of law concerning courts’ powers cannot be limited by agreement of the parties.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
10.
Costs
10.1
How will the tribunal approach the issue of costs?
 
Italy
There are no binding legal provisions concerning costs. In normal circumstances, the tribunal will apply the rule that ‘costs follow the event’, unless there are reasons to apportion costs in a different manner. In practice, tribunals sitting in Italy often depart from this rule, either in full or in part.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
10.2
Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
 
Italy
There are no restrictions on the agreement of the parties in terms of costs.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
11.
Funding
11.1
Is third-party funding permitted for arbitrations seated in your jurisdiction?
 
Italy
Third-party funding is still uncommon in Italy. However, there seems to be no legal obstacle to its use in arbitration, as well as in court proceedings.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
12.
Award
12.1
What procedural and substantive requirements must be met by an award?
 
Italy
The award is decided by majority vote. The award must be in writing and must include:

  • the name(s) of the arbitrator(s);
  • the seat of the arbitration;
  • the details of the parties;
  • a reference to the arbitration agreement and to the parties’ conclusions;
  • the reasoning;
  • the decision of the tribunal;
  • the signature of the arbitrator(s); and
  • the relevant date(s).

The award must be signed by a majority of the arbitrators, who will state that the other arbitrator(s) are unable or unwilling to sign. The award becomes effective when the last signature is affixed and must be sent to the parties within 10 days.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
12.2
Must the award be produced within a certain timeframe?
 
Italy
Unless the parties have agreed otherwise, the timeframe within which to issue the award is 240 days from the constitution of the arbitral tribunal. This term may be extended for a further 180 days, by operation of law, if any of the following circumstances occurs:

  • witness evidence must be gathered;
  • an expert is appointed by the arbitral tribunal;
  • a partial or interim award is issued; or
  • one of the arbitrators is replaced.

The timeframe can also be extended by order of the court, upon the request of the arbitrator(s) or of one or all of the parties, or by agreement of the parties.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
13.
Enforcement of awards
13.1
Are awards enforced in your jurisdiction? Under what procedure?
 
Italy
Pursuant to Article 824-bis of the Code of Civil Procedure, an arbitral award has the same effects as a court judgment. The party seeking enforcement must file the award with the court at the seat of the arbitration, requesting an exequatur. The court will limit itself to checking whether the award meets the formal requirements provided for by law.

If the first-instance court rejects the request, the applicant may appeal to the court of appeals, whose decision is final and binding.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
14.
Grounds for challenging an award
14.1
What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
 
Italy
Unless the parties have agreed that an appeal on the merits is admissible, which is very rare, an award can be challenged only for formal reasons. Article 829 of the Code of Civil Procedure sets out the following “causes of nullity” (ie, grounds for challenging an award):

  • The arbitration agreement was invalid;
  • The arbitrators were not appointed pursuant to the law;
  • The arbitrators did not have legal capacity;
  • The award exceeded the scope of the arbitration agreement;
  • The award does not contain the reasoning, the orders or the signatures of the arbitrators;
  • The award was rendered after the expiration of the relevant timeframe;
  • During the arbitration proceedings, the formalities agreed by the parties under sanction of nullity were not complied with and the nullity was not cured;
  • The award conflicts with a previous award or judgment which has become res judicata (ie, final and binding) and was filed in the arbitration;
  • The parties did not have sufficient and/or equal opportunities to present their case;
  • The award does not decide the merits of the case;
  • The award contains contradictory orders;
  • The arbitrators did not decide on claims or defences raised by the parties; or
  • The award conflicts with public policy.

In addition, an award might be subject to revocation if a party becomes aware of a fraud committed by the opponent or by an arbitrator, or discovers documents that were previously unknown due to the other party’s behaviour.

Third-party opposition is also possible if the award unduly harms the right of a third party.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
14.2
Are there are any time limits and/or other requirements to bring a challenge?
 
Italy
The summons seeking nullification of an award must be filed with the court at the seat of the arbitration within 90 days of service of the award on the party seeking the declaration of nullity. If the award is not formally served on the parties, the relevant deadline is one year from the latest signature of the arbitrators.

In case of revocation or third-party opposition, the deadline is 30 days from the date on which the interested party becomes aware of the circumstance triggering the possible challenge.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
14.3
Are parties permitted to exclude any rights of challenge or appeal?
 
Italy
An agreement to exclude the rights of challenge or appeal will be invalid.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
15.
Confidentiality
15.1
Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?
 
Italy
There is no duty of confidentiality in the arbitration legislation and the prevailing view is that arbitration is not per se confidential. However, arbitral rules and professional conduct regulations provide strict confidentiality obligations. As a result, in practice, arbitrations seated in Italy are indeed confidential.

For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale
15.2
Are there any exceptions to confidentiality?
 
Italy
The disclosure of information concerning arbitration proceedings is possible:

  • if requested by the law; or
  • with the consent of all parties involved (ie, the parties and the arbitrators).
For more information about this answer please contact: Gian Paolo Coppola from LCA Studio Legale