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What are the validity requirements for an arbitration agreement?
The arbitration agreement must be in writing; otherwise, it will be void.
If an arbitration clause is included in the general conditions of a contract or in pre-printed forms prepared by a party for uniform use in a series of indefinite contractual relationships, it must be specifically approved in writing; otherwise, it will be invalid.
With regard to consumers, an arbitration clause is presumed to be overly burdensome until proven otherwise and as such is void.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
Arbitration agreements both establish the power of the tribunal and revoke the power of the national courts to make a decision. If a claim that is subject to an arbitration agreement is brought before a national court, the court’s jurisdiction must be challenged upon submission of the first brief of defence at the latest; otherwise, the arbitral tribunal will lose its competence over the dispute. If the arbitral tribunal finds that it does not have jurisdiction, the dispute may proceed before the national courts and vice versa.
The national courts are generally pro-arbitration and will give effect to a valid arbitration agreement between the parties. Pursuant to Article 808-quater of the Code of Civil Procedure, in case of doubt the arbitration agreement is interpreted to extend to all disputes arising under the contract or from the relationship implied by the agreement.
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?
This issue is not expressly regulated by law. Two different situations may be distinguished in this regard:
- In the case of arbitration between the same parties based on a single arbitration clause contained in a single contract, it is possible to consolidate different proceedings, provided that the tribunal is comprised of the same members and the parties so agree.
- In the case of arbitration between the same parties based on multiple arbitration clauses arising from different interconnected contracts, in principle, separate proceedings are required for each dispute. However, the Supreme Court of Cassation has found it acceptable to have a single proceeding where:
- the parties expressly agree to this and a single tribunal is appointed; or
- the disputes are related and arise from related contracts containing homologous arbitration clauses, if the parties agree and appoint the same arbitrators for each of the proceedings.
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?
The parties are free to determine the applicable law, subject only to compliance with Italian public policy.
Where the parties have not agreed on the applicable law, the tribunal will decide this based on the conflict of laws rules. In international arbitration, the tribunal has greater autonomy and can apply the regime deemed most appropriate (eg, based on the location of the dispute), or apply the conflict of laws systems for each party to the dispute, the Lex Mercatoria or the principles of UNIDROIT.
Are there any provisions on the separability of arbitration agreements?
The principle of the autonomy of the arbitration agreement is expressly addressed in Italian law. The validity and enforceability of an arbitration agreement should be evaluated independently from the rest of the contract. However, the principle of autonomy carries certain consequences:
- The nullity, invalidity or unenforceability of the contract does not also imply the nullity, invalidity or unenforceability of the arbitration agreement, except where the defect is inherent.
- Termination of the contract does not terminate the effects of the arbitration agreement; thus, it is for the tribunal to rule on subsequent disputes arising after termination of the relationship.
- The tribunal retains the power to decide on its own jurisdiction, even where the existence or validity of the arbitration agreement is challenged.
Are multiparty agreements recognised?
Multiparty arbitration is governed by Article 816-quater of the Code of Civil Procedure, which establishes the following conditions for multiparty arbitration:
- All of the parties must be bound to the same arbitration agreement.
- The tribunal must be nominated as follows:
- All arbitrators must be appointed by a third party;
- The arbitrators must be nominated by agreement of all parties; or
- Once the plaintiff has nominated its arbitrators, the other parties can nominate an arbitrator if all are in agreement; otherwise, they must entrust the nomination to a third party.
If these conditions are not met and a joinder is necessary (ie, if the dispute concerns a multiparty substantive relationship), the arbitration cannot proceed and the dispute will be brought before a national court. If there is a voluntary joinder, the dispute will split into multiple parallel arbitration proceedings.
Where, conversely, more parties regroup into two opposing camps, each of these groups will nominate its arbitrator.
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