Domestic arbitration Archivi - Arbitration in Italy

Breach to the arbitral agreement

by Roberto Olivaart. 806 It. code civ. proc. 28 June 202328 June 2023No Comments

Commercial arbitration practitioners sometimes face problems arising from the conduct of a party that, recalcitrant to see the dispute decided by the arbitrators as agreed, engages in conduct with the apparent intent to prevent or hinder and slow down, the arbitral proceedings.

The leading arbitral institutions are also aware of this and have included in their rules the admonition represented by the express provision that the parties must conduct themselves in good faith and fair dealing.

The subject has not, however, found particular attention in Italy. For this reason, it seems appropriate to address it.

Some thoughts on the reform of Italian arbitration law

by Roberto Olivaart. 806 It. code civ. proc., art. 813/bis It. code civ. proc., art. 815 It. code civ. proc., art. 818 It. code civ. proc. 16 May 202318 May 2023No Comments

Much has been written, and much will still be written, about the recent reform of Italian arbitration law. The undeniable merit of this reform is that it brings the Italian system closer to that of other jurisdictions sharing the same civilizational perspective. The changes that have (finally) allowed arbitrators to issue interim and precautionary measures, as well as those concerning the disclosure and disqualification of arbitrators, should indeed be interpreted in this sense. Italy is now among the most advanced jurisdictions, with changes that include the choice of applicable law, allowing parties and arbitrators to apply non-state rules such as lex mercatoria.

Default arbitration proceedings

by Roberto Olivaart. 829 It. code civ. proc. 1 October 20214 October 2021No Comments

Default arbitration proceedings, or – with a more accurate wording – arbitration proceedings in which a situation occurs corresponding to the situation giving rise to default proceedings in State Courts, is a topic of relevant practical interest.

Italian scholars dealt with that topic, developing three theses. The first thesis holds that the above situation may occur in arbitration proceedings. The second thesis, on the contrary, is that this situation cannot occur. The third thesis, which is the more persuasive, is that it is necessary to identify the law rules concerning default proceedings before State Courts, which are compatible with arbitration proceedings.

On the other hand, Italian case law tends to repeat the doctrine that default proceedings rules do not apply in arbitration proceedings.

In this framework, two recent decisions, both issued in proceedings for the setting aside of Italian domestic awards, are fascinating, as the awards were issued in ‘default’ arbitration proceedings.

Arbitration award and “long” term to commence setting aside proceedings

by Marco Sposiniart. 829 It. code civ. proc. 31 May 202131 May 2021No Comments

A recent decision rendered by Italian Supreme Court sitting en banc (decision No. 8776 of 30 March 2021, Italian text available here) has clarified – based on hermeneutical criteria, systematic reasons, and constitutional provisions – when the term for commencing setting aside proceedings under Article 828, para. 2, of Italian Code of Civil Procedure starts to run.

Multiparty arbitration

by Roberto Olivaart. 816/quater It. code civ. proc., art. 819 It. code civ. proc. 22 April 202129 April 2021No Comments

Both from a historical point of view and in a number of its actual implementations, arbitration is a bilateral dispute resolution mechanism: in other words, it concerns disputes between two parties, a claimant and a respondent.

It is not by chance that, taking account of the above binary structure, the default rule on the appointment of the arbitral tribunal, contained in Article 810 of Italian Code of Civil Procedure provides that each party appoints an arbitrator and that the chair is jointly appointed by the party-appointed arbitrators.

However, disputes submitted to arbitration (in particular, to international arbitration) might have a more complex structure, either because there are more than two parties to the relevant relationship, or because after the execution of the arbitration agreement the parties increase in number: for instance, in case of succession or inheritance when two or more successors or heirs succeed a single party.

Extended effects or separability doctrine?

by Roberto Olivaart. 34 decree no. 5/2003, art. 808 It. code civ. proc. 25 February 202126 February 2021No Comments

Two virtually simultaneous decisions, issued by two different lower Courts, reached opposite conclusions (Court of Catania, decision No. 1020 of 13 March 2020, Italian text available here; and Court of Milan, decision No. 2091 of 11 March 2020, Italian text available here). The legal grounds of both these decisions are indicated under Article 118, para. 1, of the Implementing Provisions of Italian Code of Civil Procedure. In other words, they merely refer to judicial precedents.

Arbitration and consortia

by Riccardo Robuschiart. 34 decree no. 5/2003 10 February 202112 February 2021No Comments

The recent publication of two decisions issued by different national courts of first instance (Court of Civitavecchia, decision No. 2 of 7 January 2021, Italian text available here; and Court of Brindisi, decision No. 22 of 5 January 2021, Italian text available here) offers the opportunity to examine the ‘state of the art’ regarding the applicability of the corporate arbitration law to consortia (consorzi).

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Public policy

by Roberto Olivaart. 829 It. code civ. proc., art. 840 It. code civ. proc. 5 February 20218 February 2021No Comments

A recent decision issued by the Italian Supreme Court (decision No. 1788 of 28 January 2021, Italian text available here) deals with the issue of public policy and its relevance in arbitration matters.

Arbitration in Italy’s 2020

by Roberto Olivaart. 806 It. code civ. proc. 31 December 20202 January 2021No Comments

Mountains of papers have been written, countless rhetorical statements and a handful of enlightening and careful considerations were spent to describe 2020 and how tragic and particular that year was.

I don’t intend to add my voice to that chorus. However, I would like to focus on two aspects, which in my opinion deserve the attention of the readers of this law journal.

Read more “Arbitration in Italy’s 2020”

Arbitration and choice of forum clauses

by Luca Giusquiamiart. 806 It. code civ. proc., art. 808/quater It. code civ. proc. 30 December 202030 December 2020No Comments

The Court of first instance of Milan addressed in its decision No. 7692 of 26 November 2020 (Italian text available here) the issue arising out of the coexistence, within the same contract, of an arbitration clause and a choice of forum clause.