New Italian provisions to reduce the workload of the Italian
Courts and to reduce the time to obtain Court decisions.
07.12.2014 - With Law no. 162/2014 the Italian Government has
enacted specific provisions in order to reduce the workload of the
Italian civil courts mainly:
through the right of the parties to refer a pending legal
proceeding to arbitration and
to the power of the parties to proceed with an amicable attempt
to settle their dispute.
The new provisions are certainly to be welcome since actually
aim at reducing the current workload of Italian Courts and to
reduce, at leats in theory, the time necessary to obtain a
This note will deal with the right of the parties to refer to
arbitration an already pending case while a further note will
discuss about the power of the parties to proceed with an attempt
of amicable settlement of their dispute.
The party may agree to refer the matter to arbitration if:
the legal proceeding is pending before a first instance Court
or before the Court of Appeal;
the matter has not reached the decisions phase;
the legal proceeding does not relate to rights that cannot be
freely disposed of by the parties, labour, public welfare and/or
social security matters.
The new rules provide that the arbitration will be governed by
the Italian Civil Procedural Code (even if with some differences
which do not seem to be fully reasonable). Despite the parties are
entitled to appoint them, the arbitrators can be chosen only
amongst lawyers enrolled in the Italian Bar Associations (with at
least 5 years enrollment).
Once the parties have agreed to refer the dispute to
arbitration, they will inform the Court before which the dispute is
pending and the competent judge, after having ascertained the
occurrence of the conditions mentioned above, will send the
relevant file to the Chairman of the local Bar Association
("Consiglio dell'Ordine degli Avvocati") who will
formally appoint the arbitrators nominated by the parties or, in
case of failure by the parties, nominated by the Chairman
The appointed arbitrators shall submit to the Bar Association a
declaration of availability for the appointment. A specific future
ministerial decree (to be enacted within 90 days from November
2014) will also identify further criteria for the appointment of
the arbitrators with specific regard to the specialization of the
lawyers and their experience in the matter referred to arbitration.
This decree will hopefully remedy to an apparent lack of any
specific requirement on the qualification of the arbitrators.
After the case has been referred to arbitration, it will
continue before the appointed arbitrators and the arbitration
proceedings have the same value of the ordinary litigation
procedures. The award will have obviously the same value of a court
If the Court litigation was pending before the Court of Appeal,
the arbitration proceeding must be concluded within 120 days
(eventually extended for a further 30 day period); otherwise the
proceeding has to be resumed before the Court of Appeal in the
following 60 days. If the parties do not resume the case before the
relevant Court, the arbitral proceeding itself is declared extinct
and the decision of the first court will become final.
If instead the Court litigation was pending before a first
instance Court, the arbitration must be concluded within 240 days
(as provided by Article 820 of the Civil Procedural Code).
Despite the new provisions are to be considered as an effective
way to solve partially the well-known tardiness of the Italian
judicial system, the new law has been criticized on various points
as for instance, by the National Association of Judges, in respect
of the authority granted to the Bar Association to appoint
arbitrators. Certainly it is to be criticized the fact that the
parties can appoint as arbitrators only lawyers (who will certainly
be adequate for this role) but will not allow the parties to
appoint technicians for all the disputes which will better
understood by engineers or the like.
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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