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Starting an arbitration proceeding
What is needed to commence arbitration?
In order to commence arbitration, a request for arbitration should be served on the other parties, setting out the details of the dispute and the appointment of an arbitrator, if required by the arbitration agreement. If the agreement provides for the appointment of a sole arbitrator or arbitrators by a third party, the request for arbitration must include a request to that third party to make such appointment.
The request for arbitration must be signed personally by the party, or solely by its lawyer if the request is accompanied by the appropriate power of attorney.
Notification of this act marks the starting point of the arbitration proceedings and produces the typical substantive effects of a judicial demand.
Are there any limitation periods for the commencement of arbitration?
No. The standard Civil Code time bar provisions (concerning both the right in dispute and its exercise) will apply. The term for exercising a right may also be specified in a contract.
Are there any procedural rules that arbitrators must follow?
According to Article 816-bis of the Code of Civil Procedure, the procedural rules are determined by the parties before the commencement of arbitration, either through the arbitration agreement or in a separate written document. Otherwise, the arbitrators will establish the rules for conducting the proceedings in the manner they deem most appropriate (although they will usually also seek the consent of the parties). The parties or the arbitrators may also apply the rules for judicial proceedings set forth under the Code of Civil Procedure, where appropriate. In any case, the regulatory powers of the parties and the arbitrators are subject to compliance with the adversarial principle, according to which the parties must be afforded reasonable and equal opportunities of defence.
Where the parties have provided for the application of the regulations of an arbitration institution, the rules therein will apply.
Are dissenting opinions permitted under the law of your jurisdiction?
Dissenting opinions are not expressly regulated, but in practice they are permitted.
Can local courts intervene in proceedings?
Since arbitrators cannot order precautionary, provisional or emergency measures (in according to Article 818 of the Code of Civil Procedure), the parties must apply to the national courts to obtain such measures. Under certain circumstances, the national courts may be used to safeguard a party’s right to evidence.
Can the local courts assist in choosing arbitrators?
A national court may intervene in the selection and appointment of the arbitrators where:
- the parties or the law require it to do so;
- the parties did not specify the method of appointing the arbitrators in the arbitration agreement and cannot reach agreement on this (according to Article 810 of the Code of Civil Procedure);
- an arbitrator must be replaced (according to Article 811 of the Code of Civil Procedure); or
- a party responsible for appointing an arbitrator fails to do so.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
A respondent’s failure to participate in arbitration is not governed by the Code of Civil Procedure and is uncommon. In principle, this exposes the respondent to liability and the other party may seek termination of the arbitration agreement. Alternatively, the plaintiff may ask that the arbitrator be appointed instead by the president of the national court of the district in which the seat of arbitration is located. In this case, the arbitration will proceed with full effects notwithstanding the absence of the respondent. A party cannot be forced to participate in the proceedings.
The arbitrators cannot issue summons to third parties either to be heard as a witness or to join the proceedings. In the former case, if a witness does not appear, the tribunal may ask the president of the competent national court to order the witness’s appearance. In the latter case, the tribunal may in certain cases encourage the third party to participate in the proceedings. However, if the third party does not show up, there is no other instrument to oblige it to join.
In what instances can third parties be bound by an arbitration agreement or award?
In general, third parties are not bound by arbitration agreements or awards, except in the following circumstances.
The arbitration agreement may extend to third parties as successors in title. This issue is frequently debated, but it is clear that a third party which assumes the substantive legal position of one of the parties (eg, through transfer from a contract or of a company) also assumes the arbitration clause.
Third parties that have not joined the arbitration proceedings are not generally bound by the award. However, like a national court judgment, the award will bind the successors of a party by law, as well as third parties with claims against that party (ie, parties which, during the arbitration proceedings, succeeded to ownership of the entitled rights). Such third parties, including entitled beneficial owners, may also intervene voluntarily in the arbitration proceedings, provided that the original party continues to participate; although with the agreement of the other parties, the original party may be ousted from the proceedings.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
Unless the parties have agreed otherwise, the language of arbitration is determined by the arbitrators (according to Article 816-bis of the Code of Civil Procedure), taking into account the facts of the dispute and the need to afford the parties equal rights of defence, given their respective knowledge and that of their counsel. The use of multiple languages is not excluded and may be allowed where appropriate.
The seat of arbitration is very important:
- It is the main criterion for establishing the nationality of the arbitration and the award.
- It determines the competent court to appoint the arbitrators or order the appearance of witnesses, where necessary; and
- It determines the competent court of appeals for both appellate issues and enforceability.
- The seat of arbitration is generally determined by the parties and is binding on the arbitrators; otherwise, the arbitrators will choose a seat which is equidistant from and neutral for the parties. As last resort, Italian law provides that the seat will be the place where the arbitration agreement was signed; if the agreement was signed abroad, the seat will be in Rome (according to Article 816 of the Code of Civil Procedure).
The seat of arbitration will not necessarily be the place where the proceedings are actually conducted.
How is evidence obtained by the tribunal?
There is greater flexibility with regard to the taking of evidence in arbitration proceedings than before the national courts. The following general legal principles cannot be derogated from and must also be observed in the context of arbitration:
- Each party must be afforded a fair opportunity to present its case.
- The arbitrator must be independent and impartial, which also extends to the admission and evaluation of evidence.
- Other principles may be derogated from by the parties. The parties may also grant the arbitrators investigative powers (which are not generally provided by law). Certain rules on the admissibility of evidence may be derogated from – specifically, as regards the types of evidence admissible and limitations with respect to certain types of evidence.
The law (Article 816-ter of the Code of Civil Procedure) expressly provides that where there is more than one arbitrator, the arbitrators may delegate to one arbitrator the necessary powers to carry out some or all of the actions involved in taking evidence.
What kinds of evidence are acceptable?
The following types of evidence are admissible:
- documents, agreements and deeds;
- witness testimony, both oral and through witness statements. While in ordinary proceedings cross-examination is not permitted, in arbitration witnesses can be cross-examined if the parties have agreed to this;
- production orders. The arbitrator may order one of the parties to the proceedings or a third party to produce a document. However, if the person so ordered fails to comply, the arbitrators do not have the ability to impose sanctions;
- requests for information from the public administration relating to specific acts or documents. The arbitrators may request such information either at the request of a party or on their own initiative;
- sworn statements;
- the results of searches which the arbitrators order to the person or property of a party to the proceedings or a third party; and
- expert report. Cross-examination of experts is permitted, but rare.
By agreement of the parties, the International Bar Association Rules on the Taking of Evidence in International Arbitration may be applied, as far as possible.
Atypical forms of evidence which are not expressly regulated by the law are also considered admissible in arbitration proceedings.
Is confidentiality ensured?
There is no specific provision imposing a duty of confidentiality on arbitrators. However, the parties may impose such an obligation. Arbitrators who are lawyers must also comply with a general and specific duty of confidentiality pursuant to the Professional Code of Conduct. The rules of arbitration institutions also expressly impose confidentiality obligations on the institution itself, the arbitrators, the parties and the experts.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
In principle, a party may legitimately use information from arbitration proceedings or an arbitral award in another proceeding in order to safeguard its rights.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Lawyers (as counsel as well as arbitrators) are subject to the Professional Code of Conduct, which includes specific provisions to guarantee independence and impartiality and preserve the trust placed in them by the parties. In addition, arbitration institutions often have specific codes of ethics that apply to arbitrators.
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