Interim measures and arbitration in Italy after the 2022 reform: initial considerations in light of Article 818 of the Italian Code of Civil Procedure

The civil procedure reform introduced by Legislative Decree No. 149 of 10 October 2022, in force since 28 February 2023, has also profoundly impacted arbitration law. One of the most significant changes is the possibility for Italian arbitrators to grant interim measures under certain conditions. This long-awaited change modifies a historically rigid structure that has been the subject of frequent criticism.

It is now possible to reflect on the reformed Article 818 of the Italian Code of Civil Procedure in light of its first practical applications, and in particular of an order issued by the Court of Milan on 7 January 2025 (Italian text available here), which is the first judicial decision to deal with the new statutory framework.

Before the reform, an arbitral tribunal seated in Italy was precluded from ordering interim measures except for one specific area (corporate arbitration, where the Italian law rules provided for the possibility for arbitrators to suspend the enforcement of corporate resolutions as a precautionary measure under Article 35(5) of Legislative Decree No. 5/2003). In all other cases, however, the power to grant interim relief remained firmly and exclusively in the hands of the State courts.

This arrangement was the subject of strong criticism. It was observed, among other things in particular, that the inability of arbitrators to guarantee urgent protection undermined the effectiveness of arbitration itself, making it effectively subordinate to the intervention of the State Courts even in the presence of an arbitration agreement. This produced an issue that was difficult to reconcile with the needs of international trade.

Therefore, the new wording of Article 818 of the Code of Civil Procedure, introduced with the 2022 reform, marks a long-awaited change of pace.

The said provision now states, “The parties may grant the arbitrators with the power to issue interim measures by means of the arbitration agreement or by written document prior to the commencement of the arbitration proceedings, also by reference to arbitration rules. The interim jurisdiction conferred on arbitrators is exclusive” (paragraph 1), and “Before the sole arbitrator is accepted or the arbitral tribunal is constituted, the application for precautionary measures shall be submitted to the court having jurisdiction under Article 669-quinquies” (paragraph 2).

The mechanism is apparently clear. Arbitrators may issue precautionary measures only if the parties have expressly conferred such power on them. Once conferred, the precautionary power becomes exclusive, except for the phase before the constitution of the arbitral tribunal, in which the State courts retain jurisdiction.

This solution follows models already tested abroad (which we have already discussed here) and finally enhances the principle of private autonomy.

The new structure emphasises the will of the parties. They decide whether and when to confer on the arbitrators the power to issue precautionary measures. This has significant practical consequences: those drafting arbitration clauses will have to pay particular attention to their wording in order to avoid ambiguity or unintended exclusions; reference to arbitration rules will take on a central role, provided that these expressly provide for the arbitrators’ power to grant interim measures in light of the new legislation; and Italian arbitration institutions, for their part, will be required to review and update their rules in order to align themselves with the new Article 818 of the Italian Code of Civil Procedure and offer the parties a genuine alternative to the state courts.

Thus, less than two years after the reform came into force, the first ruling destined to set a precedent was handed down for better or worse: the order issued by the Court of Milan on 7 January 2025.

In this case, the parties had concluded an arbitration agreement that referred to institutional arbitration rules. Those rules (specifically, the rules of the Milan Chamber of Arbitration), even before the reform, provided for the possibility for arbitrators to adopt precautionary measures. Article 26(1) provided that “The Arbitral Tribunal, at the request of a party, may issue all precautionary, urgent and provisional measures, including those of an anticipatory nature, which are not prohibited by mandatory rules applicable to the proceedings“.

After the entry into force of the new Article 818 of the Italian Code of Civil Procedure, the arbitration rules were amended, but only to allow the parties an opt-out: “Unless otherwise agreed by the parties, the Arbitral Tribunal, at the request of a party, has the power to adopt all precautionary, urgent and provisional measures, including those of an anticipatory nature, which are not prohibited by mandatory rules applicable to the proceedings“.

However, the Court of Milan examined the merits of the request for precautionary measures, considering that it had jurisdiction and that the provision of the arbitration rules was irrelevant in light of the changed regulatory context.

This is a decision which, on closer inspection, is open to more than one criticism.

First, it is unclear whether the arbitral tribunal had already been constituted in the case in question. However, it must be assumed that it had. Otherwise, the reasoning of the Court of Milan would not hold, given that Article 818(2) of the Italian Code of Civil Procedure, in any case, attributes jurisdiction to the state court before the arbitral tribunal is constituted.

Secondly, it appears from the order that the parties did not bring to the Court’s attention the fact that, even before the 2022 reform, the arbitration rules of the Milan Chamber of Arbitration provided that arbitrators had the power to issue all interim measures that were not “prohibited by mandatory rules applicable to the proceedings“.

In other words, the arbitrators’ jurisdiction to grant interim relief did not derive from an amendment to the rules but from a change in the regulatory framework while the arbitration rules remained unchanged.

It could be argued that, in such a context, there was no explicit and conscious attribution of jurisdiction to grant interim relief to the arbitral tribunal.

However, this objection does not seem to hit the mark because it fails to consider that the choice of administered arbitration is based on the parties’ trust in the arbitral institution; trust which, as noted in doctrine, cannot result in the crystallisation of a regulatory framework at the date of the arbitration clause, but must instead allow the institution to amend its rules or their scope of application, even, as in the present case, by virtue of subsequent changes in the law.