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National arbitration laws
What legislation applies to arbitration in your jurisdiction?
The general regime applicable to domestic and international arbitration is set forth in the Code of Civil Procedure (Sections 806 to 840).
In addition, special rules on arbitration in corporate matters are provided for under Italian Legislative Decree 5 of 17 January 2003 and Italian conflict of law rules may come into play in case of transnational disputes.
Lastly, the bilateral and multilateral conventions to which Italy is a party will be taken into account in relation to international arbitration.
Are there any mandatory laws?
The overriding principle of public policy and national constitutional values (eg, rights of defence and due process) must always be adhered to, notwithstanding any waiver or derogation. Therefore, any breach to this principle and values will be regarded as a mandatory ground for challenging awards (Sections 829 and 831 of the Code of Civil Procedure).
New York Convention
Is your country a signatory to the New York Convention? If so, what is the date of entry into force?
Yes. Italy ratified the New York Convention with the enactment of Law 62/1968.
Are there any reservations to the general obligations of the convention?
No. Implementing legislation specifies that the New York Convention will have full and integral application.
Treaties and conventions
What other treaties and conventions in relation to arbitration is your jurisdiction party to?
Italy is a party to the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards, the 1961 European Convention on International Commercial Arbitration and the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States. As of 1 January 2016, Italy withdrew from the Energy Charter Treaty, signed on 17 December 1994. Italy is also a party to a number of bilateral conventions on arbitration.
Has your jurisdiction adopted the UNCITRAL Model Law?
Italian arbitration law is not based on the UNCITRAL Model Law, although it recognises many of the Model Law’s essential principles and criteria. For example, under Italian arbitration law, general consistency exists with regard to the definition and requirements of the arbitral agreement, as well as to the freedom of the parties to agree on rules to be applied in the arbitral proceeding.
Are there any impending plans to reform the arbitration laws in your jurisdiction?
A comprehensive reform of arbitration law, and alternative dispute resolution (ADR) legislation in general, is currently being considered. An ad hoc commission (Commissione Alpa) had been set up with the aim of developing regulations in this area. The main proposals put forward by the commission include:
- the possibility to empower arbitrators to issue interim measures, under arbitral institutions rules;
- the introduction of an automatic mechanism so that disputes pending before state courts may be transferred to arbitration, while preserving any procedural steps carried out before the court;
- the possibility to challenge the award directly before the Supreme Court, instead of the Court of Appeal; and
- the arbitrability of all labour disputes, disputes involving consumers, as well as disputes vis-à-vis the public administration.
The Italian chambers of commerce (the main providers of ADR) have established another working group for an overall revision and improvement of their services.
What are the validity requirements for an arbitration agreement?
Arbitration agreements must be made in writing and determine the subject matter of the dispute, under penalty of voidance (Sections 807 and 808 of the Code of Civil Procedure).
The requirement of written form is also deemed met when the intention of the parties is expressed by certain electronic means and the applicable rules relating to transmission and receipt are complied with.
According to the prevailing case law and doctrine, such requirement are deemed satisfied when the arbitration agreement makes express and specific reference to an arbitration clause contained in another act, while a general reference to the latter is insufficient.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
State courts will decline jurisdiction over any dispute allegedly covered by an arbitration agreement. However, an interested party may challenge the courts’ jurisdiction on submission of its first defence, under penalty of forfeiture.
In general, state courts show a pro-arbitration approach, in line with the rationale of the law. Indeed, pursuant to Section 808quater of the Code of Civil Procedure, an arbitration agreement will be construed as to extend jurisdiction of the arbitral tribunal over all disputes arising out of the relating contract and the relating underlying relationship.
According to the case law, such principle will be taken into account where contracts contain conflicting arbitration and forum selection clauses (Supreme Court decision 6757/1993).
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
Italian arbitration law does not cover specifically the issue of consolidation of separate arbitral proceedings. The rules of the Milan Chamber of Arbitration provide – subject to certain requirements – for the possibility to consolidate parallel proceedings pending in front of the same tribunal (Article 22.3).
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
Parties are entitled to determine the substantive law applicable to the dispute. Absent any provision to that effect, the arbitral tribunal determines the law applicable to the merits based on the applicable conﬂict of laws rules.
Rules of the main arbitral institutions are consistent with the above principle, indicating that the arbitral tribunal will apply the rules that it finds appropriate, taking into account the nature of the case and the characteristics of the parties (eg, Article 3 of the Rules of the Milan Chamber of Arbitration).
Are there any provisions on the separability of arbitration agreements?
Pursuant to Section 808 of the Code of Civil Procedure, the validity of the arbitration clause is evaluated independently from the underlying contract. Thus, ineffectiveness or voidance of the contract does not, in principle, affect the arbitration agreement. The principle of separability is also settled in case law (see Supreme Court Decision 17393/2015).
Are multiparty agreements recognised?
Yes, although specific conditions apply to multiparty arbitration to ensure the equal right of all parties to appoint arbitrator(s), as well as impartiality of the arbitral tribunal.
Under Section 816quater of the Code of Civil Procedure, arbitration agreements binding multiple parties allow each of them to commence arbitration against all or them, provided that:
- the arbitration agreement defers the appointment of the arbitral tribunal to a third party;
- all parties agree on the appointment of the arbitrator(s); or
- after appointment of the arbitrator(s) by the claimant, the other parties agree on the appointment of an equal number of arbitrators or on the deferral of such appointment to a third party.
Failing such conditions, separate proceedings must be commenced and, ultimately, in case of proceedings where the participation of multiple parties is required by law, the arbitration proceeding will not be admissible.
Criteria for arbitrators
Are there any restrictions?
Pursuant to Section 812 of the Code of Civil Procedure, any individual having legal capacity may be appointed as arbitrator.
Additional restrictions may apply under special regulations in order to prevent conflict where individuals exercising public functions are concerned, and may be relevant as ground for disqualifying arbitrators. Thus, state officials and employees may not serve as arbitrators unless specifically authorised to do so by the competent authority, while state judges and attorneys general may not be appointed as arbitrators under penalty of termination of their office and voidance of any acts performed.
What can be stipulated about the tribunal in the agreement?
Under Section 809 of the Code of Civil Procedure, the arbitration agreement must contain the appointment of the arbitrators or determine both their number and the procedure for their appointment.
No mandatory rules for the appointment of arbitrators are provided for, except for the relating modalities and terms of notice, as Section 810 of the code requires each party to inform the other of such appointment by means of service of written notice. Specific time limits (within 20 days of receipt of notice) are also provided for the respondent to appoint its arbitrator(s). Failing the latter, default mechanisms apply that entail the intervention of state courts.
Specific requirements and/or qualifications for arbitrators may be included in the arbitration agreement or referred to in the rules of an arbitral institution, thus becoming relevant as grounds for disqualification.
Lastly, parties may establish in the arbitration agreement the rules to be followed by the arbitral tribunal under a substantive and procedural standpoint. In particular, the agreement may determine whether the arbitral tribunal should decide based on the rules of law or ex aequo et bono principles.
Are there any default legal requirements as to the selection of a tribunal – for example, concerning the number of arbitrators or their characteristics?
Provided that the number of arbitrators is uneven, no default requirements are set forth under Italian arbitration law. In case of an even number of arbitrators, an additional arbitrator is appointed by the competent court on application of the parties.
In the event that the arbitration agreement does not determine the number of arbitrators and absent any agreement between the parties, the arbitral tribunal will be composed of three arbitrators.
In such event, as well as whenever one or more parties fails to appoint their arbitrators, the latter will be appointed by the chair of the competent court (Section 810 of the Code of Civil Procedure).
Additional requirements may be provided for under the rules of arbitral institutions.
Challenging the appointment of an arbitrator
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?
The appointment of arbitrators may be challenged if they:
- fail to meet the qualifications agreed between the parties;
- an entity, association or company that they are a director of has an interest in the case;
- the relating spouse is a relative (up to the fourth kin) or cohabitant of, or has habitual contacts with, a party, its legal representatives or counsels;
- the relating spouse is involved in a pending dispute against, or has a serious enmity with, one of the parties, its legal representatives or counsels;
- have an employment and/or consulting relationship or other relationship of economic or associative nature which might affect the arbitrator’s independence, with one of the parties, a company controlled by the same, its controlling entity, or a company subject to common control;
- have been appointed as guardian or tutor of one of the parties; or
- have given assistance to, or acted as legal counsel of, one of the parties in a prior phase of the case or has testified as witness.
Challenges must be filed before the chair of the competent court (ie, the court of the seat of arbitration) within 10 days of notice of the appointment or the time when the party had knowledge of the ground, if later.
The challenge is settled by final order, after the chair has heard the challenged arbitrator and carried out summary enquiries, where necessary. In any case, the challenge of (an) arbitrator(s) cannot suspend the arbitral proceedings, unless otherwise provided for by the arbitral tribunal. In case the challenge is upheld, any acts performed by the challenged arbitrator or with intervention of the same will be ineffective.
Special rules may apply to proceedings administered by institutions, in accordance with the relevant rules.
How should an objection to jurisdiction be raised?
Pursuant to Section 817 of the Code of Civil Procedure, any challenge based on the existence, validity, contents and scope of the arbitral agreement must be raised, under penalty of forfeiture, on submission of the first defence following the constitution of the arbitral tribunal. In case of failure of the party to comply with such time limit, no other objections may be raised thereafter, nor the award may be challenged on such basis.
According to the prevailing doctrine, the procedure above will apply to any challenges of arbitral jurisdiction – for instance, relating to the appointment or the constitution of the arbitral tribunal.
Similarly, any challenge of state courts’ jurisdiction in favour of arbitral jurisdiction will be time barred, if it is not raised on submission of the first defence (Section 819ter).
Replacement of an arbitrator
Why and how can an arbitrator be replaced?
Arbitrators may be replaced in the following cases:
- They have not accepted the appointment.
- They have withdrawn from office.
- Their appointment has been revoked on agreement of the parties.
- They have been found to be of supervening incapacity.
- They have been disqualified.
- They have died.
Arbitrators may be replaced where they fail to duly perform or delay of any acts required by their office. They can be replaced by way of an agreement between the parties or by an order of the competent court, on application by either of the parties, where the arbitrator fails to remedy within 15 days of formal notice to act (Section 813bis of the Code of Civil Procedure).
Pursuant to Section 811, when, for any reasons, one or more arbitrators are unable to act, they must be replaced in accordance with the relevant agreed procedure for their appointment or, in the absence, on application to the chair of the competent court.
Special rules may apply to proceedings administered by institutions, in accordance with the relevant rules.
Powers and obligations
What powers and obligations do arbitrators have?
On acceptance of the office, arbitrators are bound:
- to render the award within the time limit set forth by the parties or by the applicable law;
- not to omit or delay any of the acts of the proceeding; and
- not to withdraw from the office except for justified grounds.
Arbitrators are entrusted with broad powers to conduct the arbitral proceeding, provided that determination of the parties and the principles of due process and public policy are complied with. Absent any provisions of the parties, arbitrators may regulate the proceedings and determine their language as they deemed appropriate (Section 816bis of the Code of Civil Procedure). Moreover, arbitrators can examine witnesses, to appoint expert witnesses of the tribunal, as well as to order the production of evidence and access to information of the public administration (Section 816ter). Arbitrators are not public officials.
Liability of arbitrators
Are arbitrators immune from liability?
No. Pursuant to Section 813ter of the Code of Civil Procedure, arbitrators are liable for damages suffered by the parties in the following cases:
- omission or delay of any acts required due to fraud or gross negligence and consequent disqualification;
- ungrounded withdrawal from office; and
- omission or hindrance to render the award within the applicable time limit due to fraud or gross negligence.
In addition, arbitrators may also be deemed liable under the rules relating to liability of state judges.
Certain limitations of liability are set forth as to the amount of compensation for damages. Except for liability deriving from fraud, such compensation cannot exceed an amount triple the fee due to them.
Communicating with the tribunal
How do the parties communicate with the tribunal?
Under the Code of Civil Procedure there are no mandatory rules relating to communications between parties and the arbitral tribunal. Therefore, any means that are deemed expedient may be used, provided that the principle of due process is ensured (eg, each party will have timely and equal access to orders, acts and documents of the proceeding). The rules of the main arbitral institutions forbid ex parte communications.
Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?
The award will be rendered with the vote of the majority of arbitrators and the participation of all members of the tribunal. In the event that certain arbitrators refuse to sign the award, it may be still validly rendered, provided that mention of such refusal is expressly made. In any case, the lack of unanimity will not affect the award (Section 823 of the Code of Civil Procedure).
Are there any disputes incapable of being referred to arbitration?
Pursuant to Section 806 of the Code of Civil Procedure, disputes cannot be referred to arbitration when they relate to non-disposable rights or the law expressly excludes arbitration.
Thus, arbitration is excluded in case of rights connected to collective interests or the status of individuals – such as disputes relating corporate matters, collective interests of shareholders (Supreme Court decision 20674/2016), and citizenship and family status.
Moreover, disputes relating to employment relationships may not be referred to arbitration, unless arbitration is expressly provided for by the law or applicable collective bargaining agreement.
Can the arbitrability of a dispute be challenged?
In general, the arbitrability of the dispute may be a ground for challenging the award. Certain limitations may apply as, according to scholars, any challenges in this respect should be raised during the arbitral proceeding, on submission of the first defence.
Jurisdiction and competence-competence
Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
Under Section 817 of the Code of Civil Procedure, the arbitral tribunal is expressly granted with the power to decide on its own jurisdiction.
Such principle also imposes on state courts the duty to refrain from deciding on any issue relating to the validity and effectiveness of the arbitration agreement when the arbitration proceeding is pending (Section 819ter of the Code of Civil Procedure).
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.
Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?
The arbitral tribunal determines the costs of the proceedings by taking into consideration the fees of the arbitral tribunal and legal counsels, the costs of the tribunal’s secretary, where applicable, the costs of expert witnesses and any other expenses borne by the parties.
The parties may set out the criteria for cost allocation in the arbitration agreement. However, according to case law, the parties cannot decide that the costs should be borne in full by the successful party (see Supreme Court Decision 28960/2017).
Absent any indication of the parties thereon, costs will be allocated based on the general ‘costs follow the event’ rule, as well as considering the conducts of the parties during the proceedings. If the circumstances so suggest, costs may also be allocated equally among the parties.
Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?
The arbitral tribunal cannot grant provisional measures and, therefore, cannot impose any types of security. The intervention of state courts is not deemed admissible to this effect either. However, arbitrators may establish that the continuation of the arbitral proceeding be subject to the advance payment of costs.
What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?
The award must be drafted in writing and adopted with the participation of all arbitrators and the favourable vote of the majority (Section 823 of the Code of Civil Procedure).
The award must contain:
- the names of the arbitrators;
- indication of the seat of the arbitration;
- details of the parties;
- the arbitration agreement and the final claims of the parties;
- the reasoning of the decision;
- the decision as to the relief granted;
- the signature(s) of arbitrator(s) – that is, the signatures of the majority sufficient where reference to unanimous participation is made; and
- the date of the signature(s).
Review (scrutiny) of the award by other bodies or authorities is not required, although it may be provided for under the rules of certain arbitral institutions.
Timeframe for delivery
Are there any time limits on delivery of the award?
The parties may determine a time limit for rendering the award. Absent such provision, the award must be issued within 240 days of the date of acceptance of the appointment by arbitrators. In certain circumstances, the competent state court may extend this period further on application of either of the parties or of the arbitrators, as well as by operation of law.
The award must be delivered to the parties within 10 days of the date of signature.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?
In general, arbitrators may impose any remedies available to state courts, provided that public policy principles are met. Therefore, declaratory relief, injunctions of payment or execution of obligations (including compensation for damages), as well as orders of termination and/or specific performance of contracts, are admissible.
Arbitrators cannot award punitive damages as they are contrary to Italian public policy. Accordingly, foreign judgments ordering punitive damages may be neither recognised nor enforced in Italy. However, in a recent decision (16601/2017), the Supreme Court has made several considerations that may represent an opening for punitive damages to be soon recognised in Italy).
What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?
Arbitrators may not grant interim measures. Application for provisional measures may be brought before state courts, both before and after the constitution of the arbitral tribunal. In general, seizures of assets, provisional injunctions and orders, as well as provisional measures relating to the collection of evidence, may be taken.
In disputes concerning corporate matters, arbitrators are also empowered to suspend the effects of resolutions of shareholders’ meetings.
Can interest be awarded?
Yes. The power to award interests is generally regarded as connected to that to order payments.
At what rate?
Interests rate must be determined on the basis of the law applicable to the merit of the dispute or the agreement between the parties, if any.
Is the award final and binding?
Both final and partial awards are admissible. The award is binding on the parties to the arbitral proceeding, without prejudice to the right to challenge such award on the grounds provided for by the law. In particular, as of the date of the latest signature, the award will have the same effects as state courts’ judgments.
What if there are any mistakes?
Within one year of delivery of the award, each party may request arbitrators to correct omissions or clerical and computational errors, and to supplement the award with any of the requirements imposed for the validity of the award. The relating decision must be taken within 60 days, failing which an application for correction may be filed with the state court.
Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
The award may be challenged based on the grounds and in accordance with the forms provided for under Sections 829 and 831 of the Code of Civil Procedure, which are mandatory. However, the award may be challenged for violation of the law on the merit only where expressly provided for by the parties or by the law.
What is the procedure for challenging awards?
Challenges must be filed before the competent court of appeal within 90 days of service of the award. Absent any service, challenges must be brought within one year of the date of the last signature of the award.
The challenge does not suspend the effects of the award, unless otherwise provided for by the court, in case of serious grounds.
If the challenge is upheld, the award is declared, in full or in part, null and void by judgment of the court.
On what grounds can parties appeal an award?
Awards may be challenged by appeal for voidance, based on the following mandatory grounds:
- invalidity of the arbitration agreement;
- failure to appoint arbitrators in accordance with the rules of law;
- the award was rendered by a person ineligible for the appointment;
- the award exceeded the scope of the arbitration agreement;
- the award lacked reasoning, a decision on the relief and the signature of arbitrators;
- the award was rendered after expiration of the relevant time limit;
- failure to comply with the formalities provided for by the parties;
- the award was contrary to a previous final award or judgment having the force of res judicata between the parties;
- breaches of the due process principle;
- the award contained contradictory statements; or
- the arbitrators failed to decide on all claims and objections raised by the parties.
Appeals against decisions that are contrary to public policy must always be admitted.
What steps can be taken to enforce the award if there is a failure to comply?
Domestic awards must be filed (in original or certiﬁed copy), together with the arbitration agreement, with the state court competent based on the seat of arbitration, which will oversee a formal assessment of the award (Section 825 of the Code of Civil Procedure). Thereafter, general rules on enforcement proceeding apply.
Non-domestic awards may be enforced through a petition to be filed with the president of the court of appeal competent based on the domicile of the adverse party, or, in case of foreign domicile, with the president of the Rome Court of Appeal. The award will be declared enforceable, on assessment of its formal compliance, through an exequatur order, unless the matter is not deemed arbitrable under Italian law, or the award contains provisions contrary to public policy (Section 839).
Can awards be enforced in local courts?
Yes, both domestic and foreign arbitral awards can be enforced in Italian courts.
How enforceable is the award internationally?
The arbitral award rendered in Italy may be enforced in any other state party to the 1958 New York Convention and the 1927 Geneva Convention, in accordance with the modalities provided for thereunder, as well as in non-signatory states where domestic law allows enforcement.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Absent any express waiver thereto, states will be immune from enforcement of the arbitral awards on assets destined to sovereign functions (iure imperii).
Are there any other bases on which an award may be challenged, and if so, by what?
The award may be challenged by revocation in case it has been rendered:
- due to fraud of either of the parties or the arbitrator(s);
- based on false evidence; and
- absent decisive supervening documents, due to force majeure or the conduct of the adverse party.
Award may also be challenged by opposition from third parties, in case the relating rights are prejudiced or the award was rendered on collusion or fraud.
Additional grounds for challenging the award may be raised by opposition to its recognition and enforcement (eg, incapacity of parties, violation of the right of defence of the adverse party, or when the award is not binding, has been set aside or suspended by a competent authority of the state where, or under the law of which, it was rendered).
How enforceable are foreign arbitral awards in your jurisdiction?
In general terms, state courts show a pro-enforcement stance.
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
The enforcement of awards that have been set aside or suspended by the competent authority of the seat of arbitration may be refused or suspended on opposition by the party.
Rules and restrictions
Are there rules or restrictions on third-party funders?
No specific provisions regulate third-party funding under Italian arbitration law or the rules of arbitral institutions. The intervention of third-party investors in judicial or arbitral proceedings is uncommon in practice.
In accordance with the general principles of civil law, it may be argued that such kind of arrangements is not prevented under Italian law and should not per se prevent the recognition and enforcement of awards.
Class-action or group arbitration
Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?
Although class actions are admissible in certain limited circumstances under state courts’ jurisdiction, they are not provided for in relation to arbitration.
Are there any hot topics or trends emerging in arbitration in your jurisdiction?
Recent reform proposals have been put forward in order to improve legislation on alternative dispute resolution methods in general. In particular, the possibility to grant arbitrators the power to issue interim measures in institutional arbitrations is being debated.
Moreover, the need to foster interaction between arbitral jurisdiction and state jurisdiction is currently under scrutiny and the application of mechanisms through which a dispute pending before a national court may be smoothly transferred to arbitration has been proposed.
In general, a favourable approach towards arbitration may be noticed, aimed at extending the scope of arbitration and strengthening the relating instruments.