29.09.2013 - Article 818 of the Italian Civil Procedural Code
provides that the arbitral tribunal cannot grant "[...]
seizure orders and any other precautionary measures [...]".
This provision still comes from the old dis-favor of the Italian
legislator for the arbitration compared with the State Court
proceedings and accordingly the party will have recourse to Courts
for any requests of interim measures during the arbitration
The matter is highly debated in Italy for several reasons.
In general terms there are precautionary measures which may
affect third parties and that therefore could be of prejudice for
the third party who is not a party in the arbitration. There are
however also precautionary measures which are directed only to one
of the parties of the arbitration and there would be no reason to
prohibit the granting of precautionary measures against them.
An additional distinction has then to be made in respect of
precautionary measures which requires for their own nature an
enforcement or in any event a judicial modification of the status
The arbitrators can be considered as entitled to grant all the
precautionary measures addressed to one of the parties who can be
voluntarily complied with or those measures which do not imply in
themselves any judicial modification of the status quo. The failure
to comply voluntarily with measures adopted by the arbitrators can
be certainly sanctioned with monetary fines. Such an approach is
exactly the one adopted for instance by Italian National and
International Chamber of Arbitration of Milan Rules and Italian
Arbitration Association (AIA) Rules.
The fact that the arbitrators do not have enforcement powers
would certainly jeopardise (some) precautionary measures eventually
granted by the arbitrators. It must be however considered that the
parties voluntarily decided to refer their future disputes to
arbitration and in principle there should be no reason to fear that
the parties would not voluntarily comply with interim measures
ordered by the arbitrators.
It is widely accepted in Italy that the arbitrators should have
been expressly granted the power to issue interim measures as it
happens in many jurisdictions and as it is well provided in the
UNCITRAL Model Law. Certainly the provision (contained in the Model
Law) of security in case of interim measures would have limited the
possible negative impact of the granting of such measures and, at
least, the Italian Civil Procedural Code could have provided for a
second level control to be carried out by the State Courts, maybe
similar to the provisions contained in the Model Law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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