A. LEGISLATION AND RULES
A.1 Legislation
The regulations governing arbitration proceedings in Italy are found in the Italian Code of Civil Procedure (ICCP). Specifically, domestic and international arbitration are regulated by ICCP articles 806 to 832, while the recognition and enforcement of foreign awards are regulated in ICCP articles 839 and 840.
On 28 February 2023, the “Cartabia Reform” (“Reform“), enacted by the Italian Legislative Decree No. 149 of 2022 (“Decree“), entered into force, introducing significant changes to civil proceedings, which also affected national arbitration law. The Reform seeks to modernize the arbitral institution and to make it more attractive to foreign investors.
One of the major innovations of the Decree concerns the amendment of ICCP article 818, enabling arbitral tribunals to issue interim measures, making it no longer mandatory to apply to state jurisdiction. Such power must be conferred on the arbitral tribunal by the parties in writing, in the arbitration clause, or by a specific agreement. However, contractual clauses referring to the rules of an arbitral institution granting this power satisfies the condition. On this issue and on all the other important changes that the Decree has made to the legislative framework, the Court of Cassation has intervened with some rulings that clarified the interpretation of the new legal provisions.
International arbitration in Italy continues to be governed by the Decree, which has had no legislative amendments during the past year.
A.2 Institutions, rules and infrastructure
In Italy there are several institutions (mostly chambers of commerce) that have established chambers of arbitration. These institutions typically develop and publish their own specific rules governing arbitration proceedings.
The leading institution in this field is undoubtedly the Milan Chamber of Arbitration (CAM). It has established highly effective arbitration rules that are translated into multiple languages. These rules are designed to be extremely flexible, allowing them to be adapted to all kinds of arbitration proceedings.
The arbitration rules of the CAM entered into force on 1 March 2023. The rules are applicable to all proceedings started from that date.
Since 15 July 2024, by virtue of an agreement signed between the CAM and the Brescia Chamber of Arbitration, the former handles arbitration proceedings and the appointment of arbitrators on behalf of the latter, according to the rules and fee scales of the Milan Chamber of Arbitration.
The Palermo Chamber of Arbitration amended the fee scale, including new tariffs applicable to all proceedings starting from 1 January 2024.
The Naples Chamber of Arbitration (NAM) has recently amended its own arbitration rules, so to take into account the novelties of the Decree. The new rules (“Rules 2024“) entered into force on 1 January 2024, available for consultation on the website of the NAM.
As for interim relief, article 27 of the Rules 2024 provides that the arbitral tribunal, upon request of a party and after hearing the other parties, has the power to grant all urgent and provisional measures of protection, also of anticipatory nature, that are not barred by mandatory provisions applicable to the proceedings.
Article 50 of the Rules 2024 on the appointment of an emergency arbitrator was modified to provide that, unless otherwise agreed by the parties, prior to the constitution of the arbitral tribunal, any party may apply, even without notice to the other party, for the appointment of a sole emergency arbitrator. This arbitrator is empowered to grant urgent and provisional measures, including anticipatory ones, as long as they are not prohibited by mandatory provisions of the law applicable to the proceedings. Within five days of receiving the application, the NAM appoints the emergency arbitrator and collects their acceptance and statement of independence. Within fifteen days of receiving the file, and after having heard the parties and having adopted the most appropriate measures, the emergency arbitrator issues the requested interim, urgent and provisional measures.
B. CASES
B.1 Autonomy of the arbitration clause
The Court of Cassation clarified some aspects of the validity of arbitration clauses with two interesting rulings.
In the first case[1], the Supreme Court ruled that, if a contractual relationship continues beyond its natural expiration date without a written agreement, the arbitration clause originally provided for in the contract cannot be considered extended. Indeed, since the Italian Code of Civil Procedure (ICCP) (articles 807 and 808) requires the arbitration clause to be made in writing, a mere de facto extension of the contract does not fulfil this requirement.
In the case at hand, the plaintiff complained that the Court of Appeal of Potenza had improperly declared the invalidity of the arbitration clause on the ground that it was not included in any ongoing written contract. In the past, the parties had signed two service contracts which had both expired on 31 December 2009. The contractual relationship continued beyond the natural expiration of the service contracts under the same terms and conditions. However, since the parties had not signed a new written contract, the arbitration clause was no longer valid.
The above-mentioned ruling makes it clear that an arbitration clause is a contract with procedural effects, characterized by its own individuality and autonomy. This is known as the principle of the autonomy of the arbitration clause and it implies that the invalidity of the substantive agreement does not affect the arbitration clause contained therein. However, it also does not imply that the arbitration clause is effective in the case of non-existence of the agreement.
In the second case[2], the Supreme Court ruled that an arbitration clause contained in a preliminary contract has an independent nature with respect to the final contract and does not lose its effectiveness following the conclusion of the same, even if it is not restated in the latter. Therefore, the failure to restate the arbitration clause in the final contract is irrelevant for the purposes of its validity and enforceability.
B.2 Limits to the power of arbitrators: the principle of cross-examination
The Court of Cassation clarified that arbitral institutions, where the parties have not determined the procedural rules to be adopted in the arbitration clause, have the power to regulate the structure of the proceedings[3], save only for the mandatory principle of cross-examination (ICCP article 101). This principle grants the parties the opportunity to examine and analyze the evidence and findings of the trial to allow them an adequate defense throughout the proceedings.
In this case, the defendant challenged the judgment of the Court of Appeal of Rome because of alleged procedural flaws that occurred during the proceedings before the arbitral institution. In particular, the defendant complained that the institution had improperly granted the parties different time limits for the filing of their respective replies.
The Court of Cassation stated that, since the parties had the opportunity to present their defenses first in writing and then both orally before the arbitrators, there was no infringement of their rights of defense and the principle of cross-examination. It is an undisputed principle in the case law of the Supreme Court that in arbitration proceedings the arbitrators are free to regulate the structure of the proceedings. Therefore, they are also free to depart from the provisions laid down by the ICCP, with the sole limitation of compliance with the mandatory principle of cross-examination.
The Court of Cassation also reaffirmed this position in a subsequent ruling[4]. Indeed, in arbitration proceedings, where the parties have not required the arbitrators to apply the ICCP rules, they are allowed to modify and expand the initial claims (therefore beyond the limits provided for by ICCP). As mentioned above, the only mandatory limitation is the cross-examination principle.
[1] Court of Cassation, sec. I, 5 August 2024, no. 22077
[2] Court of Cassation, sec. I, 10 June 2024, no. 16118
[3] Court of Cassation, sec. II, 16 September 2024, no. 24777
[4] Court of Cassation, sec. I, 7 October 2024, no. 26107
