Answer ... 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 Articles 833 to 838 were repealed in 2006, and Articles 839 and 840 of the CCP regulate the exequatur of foreign awards.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.
Answer ... 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.
Answer ... 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.
Answer ... 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’).
Answer ... 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.
Answer ... Italy signed the New York Convention without reservations.
The convention was ratified by Law 62 of 19 January 1968, effective from 1 May 1969.
Answer ... 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.