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Starting an arbitration proceeding
What is needed to commence arbitration?
The arbitration proceeding is deemed commenced on submission by the claimant of its request for arbitration, whereby the intention to promote the proceeding, the specific claims and the appointment of its arbitrator are stated. The appointment of the arbitrator by the other party will follow. Lastly, formal acceptance of the office, in writing by each member of the arbitral tribunal, is required. On completion of such latter formality, arbitrators can neither be revoked by the parties nor withdraw from the office without justified reasons. Rules of arbitral institutions usually provide for more detailed requirements for the validity and effectiveness of a request for arbitration.
Are there any limitation periods for the commencement of arbitration?
No speciﬁc limitation periods are provided for. However, commencement of the arbitral proceeding may be time barred under the general statute of limitation to which the rights in dispute may be subject under the substantive applicable law.
Are there any procedural rules that arbitrators must follow?
Arbitrators must abide any procedural rules as set out by the parties until commencement of the arbitral proceeding. Absent any indications of the parties, arbitrators will conduct the proceedings and determine the language of the arbitration as they deem expedient, provided that the overriding principles of due process and public policy are ensured.
Are dissenting opinions permitted under the law of your jurisdiction?
Pursuant to Section 823 of the Code of Civil Procedure, the award will be validly rendered with the favourable vote of the majority of members of the tribunal. Under Italian arbitration law, no express provision on dissenting opinions exists, although they are generally recognised in practice.
Can local courts intervene in proceedings?
Intervention of state courts may be relevant in case provisional measures are sought by the parties and in relation to collection of evidence.
In particular, state courts have exclusive jurisdiction on requests of interim measures, which may be granted both before and after the constitution of the arbitral tribunal and will be in force during the proceeding, unless otherwise ordered by the court.
State courts may also issue provisional measures aimed at preserving evidence, in case there exists a risk that its examination and/or production may become impossible in the future. Moreover, arbitral tribunals may seek from state courts compelling orders for witnesses to appear before the arbitral tribunals.
Can the local courts assist in choosing arbitrators?
State courts will intervene in the appointment of arbitrators where:
- the arbitration agreement expressly defers to state courts the appointment of arbitrators, provides for an even number of arbitrators or does not provide for the number of arbitrators and the parties fail to agree thereon or fail to appoint the arbitrators;
- any of the parties invited to do so fails to appoint its arbitrators; and
- the third party in charge of the appointment is in default.
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?
Under Italian arbitration law, the failure of a party to participate in the arbitral proceeding is not expressly regulated. However, the Code of Civil Procedure provides for specific mechanisms in order to allow the constitution of the arbitral tribunal notwithstanding the inaction of the parties.
In practice, where the defaulting party has been duly served with the request for arbitration and the right of defence has been ensured, the arbitral tribunal will render its decision on the dispute.
That said, arbitral tribunals are not empowered to compel parties to take part to the proceedings – whether they are parties to an arbitration agreement, nor, a fortiori, where they are third parties.
In what instances can third parties be bound by an arbitration agreement or award?
Intervention and joinder of third parties to the arbitration proceeding is allowed and, therefore, third parties may be bound by the arbitral agreement and/or award, subject to the agreement of such third party, as well as the consent of the parties and arbitrators (Section 816quinquies of the Code of Civil Procedure).
In case of intervention merely aimed at supporting the position of one of the parties, as well as where the participation of third parties is required by the law, such consent is not required.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
Absent any indication thereon by the parties, the language of the arbitration will be determined by arbitrators as they deem appropriate under the circumstances of the case.
With reference to the seat of arbitration, no specific requirements apply in case of international arbitration. Conversely, in case of domestic arbitration the seat of arbitration will be set in the territory of the Italian Republic. Absent any determination of the parties, the seat will be identified by arbitrators. In case of failure of the latter to provide, the seat will be the place where the arbitration agreement was executed. If such place is outside the Italian territory, the seat will be in Rome.
How is evidence obtained by the tribunal?
The arbitral tribunal may entrust one or more arbitrators to carry out any preliminary activities.
Arbitrators may examine witnesses directly before them, as well as at the witnesses’ homes or ofﬁces, on consent of the same. Witness statements in written form are also allowed. Cross-examination is not common in practice in purely domestic arbitrations, although generally admitted.
Where witnesses refuse to appear, arbitrators are not entrusted with any coercive powers. They may, however, obtain a state court order to this effect.
By contrast, although arbitrators may – in principle – order the parties to produce documents, in case of failure to comply to such order, no compelling measures would be admissible.
Arbitrators may also appoint expert witnesses, as well as have access to information relating to acts and documents of the public administration.
What kinds of evidence are acceptable?
In general terms, absent any specifications of the parties, the arbitral tribunal is granted with broad powers in the conduct of arbitration proceedings, including the collection of evidence, and evaluation of their admissibility and relevance, provided that compliance with due process and public policy principles is ensured. The International Bar Associations Rules on taking of evidence are also often referred to in practice in international cases.
Is confidentiality ensured?
Under the Code of Civil Procedure, confidentiality is not specifically covered. However, arbitrators may be subject to a duty of confidentiality under special regulations. In particular, pursuant to their code of conduct, lawyers serving as arbitrators must:
- keep confidential facts known due to the arbitration;
- not provide information on matters relating to the proceeding; and
- not disclose the decision before it has been formally communicated to all parties.
The rules of the major arbitral institutions provide for specific confidentiality obligations.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Documents or evidence produced in arbitration proceedings may be disclosed in other proceedings by the parties to the arbitration, save for an express duty of confidentiality mutually agreed to this effect.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
The code of conduct for lawyers binds both lawyers admitted to the Italian Bar exercising in Italy and abroad, and foreign lawyers exercising their profession in Italy. It provides that lawyers serving as arbitrators must, among other things, comply with their duties of integrity and honesty, and ensure that the procedure is carried out independently and impartially, preventing any conflict of interests.
In addition, ethical standards are commonly set forth under the rules of arbitral institutions.
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