As far as construction contracts are concerned, particularly those of an international nature, the reference to arbitration of any possible disputes arising during the course of, or on completion of, the works, is preferable in many cases. In this regard, it is worth mentioning that in one of its latest legislative shake-ups, the previous Italian Parliament approved the Law of 5th January 1994, no. 25, which contains "New provisions on Arbitration and the law of International Arbitration".
The Code of Civil Procedure has therefore been amended at Art. 669 and from Art. 808 to Art. 831 in order to accommodate some important changes in this area, as well as the introduction ex novo of Arts. 832 to 840 containing special provisions relating to international arbitration.
In substance, the legislator has adhered to the orientations which have already manifested themselves in case-law and legal literature, expressly recognising the autonomy of the arbitration clause from the contract to which it refers, and eliminating the ground for the invalidity of the arbitration agreement in the event that no arbitrators have been appointed, the power to supply them now being entrusted in such cases to the President of the Court. Moreover, the legislator has established the irrelevance for the arbitral judge of the existence of a pending connected case before the ordinary judge (Art. 819-bis). The arbitrators are now entitled to take into account all the incidental questions which may arise in the course of the proceedings, except in the case of any "non-arbitrability" of a particular question.
Other touches have been added to domestic arbitration procedure, as well as to the rules concerning appeals: in particular, two further cases of a void award have been introduced and the ability to appeal has been extended to third parties (Art. 831).
The evident intention is to give the arbitration proceedings the autonomy always claimed for it by legal authors, and traditionally disliked by the ordinary judge, and to create a new and different relationship, in terms of cooperation, between the ordinary judge and the private arbitrators.
Also of importance, particularly for construction and engineering contracts with foreign parties, is the introduction in the Italian legal system of the independent discipline of International Arbitration. With the present law, the provisions already in force in Italy as a result of the reception of the Convention of New York in Italy since 1962 has been incorporated in the Code of Civil Procedure. In fact, with the welcome reform of the procedure for the recognition and execution of foreign arbitration awards, the same are no longer the object of deliberation (Art. 800 has been repealed), and can be declared enforceable by an order of the President of the Court of Appeal, in accordance with the terms provided by the said Convention, after a merely formal examination.
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.
