Massimo Benedettelli, ARBLIT – Radicati di Brozolo Sabatini Benedettelli Torsello
Over the past 40 years, the Italian legislature has enacted three different reforms of the Italian law of arbitration, showing an ongoing interest in updating the regulation given to this means of settling disputes. Nevertheless, some commentators are still wary about the efficiency of the Italian law of arbitration and especially of its ability to compete on an international level with the arbitration systems of other countries, such as France and Switzerland, where international commercial arbitrations are frequently seated.
This reflects a certain misconception about Italian arbitration law. While it is true that, as for any other legal instrument, the regulation given in Italy to international arbitration may still be improved, there is also no doubt that Italy offers companies a pro-arbitration legal framework that bears substantial, sometimes unknown, qualities. This can be demonstrated by benchmarking it with the Model Law of Arbitration promoted in the context of the United Nations Convention on International Trade Law (the UNCITRAL Model Law).
Arbitration in Italy is mainly governed by the provisions set forth in articles 806-840 of the Code of Civil Procedure (CCP) as amended on different occasions over the years.
It is also worth noting that Italy is a party not only to the 1958 New York Convention but also to numerous bilateral and multilateral conventions that supplement or, as lex specialis, amend the regime set out by the CCP. Among them one may highlight the 1961 Geneva Convention on International Commercial Arbitration, the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States, the Energy Charter Treaty (from which, however, Italy has recently withdrawn), as well as more than 80 bilateral investment treaties contemplating arbitration as a means for the settlement of investments disputes.
The UNCITRAL Model Law is an archetypical arbitration law that
states may freely adopt or use as a basis on which to model their national arbitration laws. Its main purpose is to promote the harmonisation of the different legal systems while respecting their peculiarities. In particular, the rationale behind the Model Law is to avoid that states, through their national laws, “equate the arbitral process with court litigation”.
The Italian legislature seems to have complied with the spirit of the Model Law. The foundation is article 816-bis CCP, according to which the parties in the arbitration agreement, and the arbitral tribunal after its constitution, are free to set such rules for the conduct of the arbitration as they suit them best. By so doing, they may derogate from all the rules applicable to Italian court proceedings, as long as the principles of due process and equality of the parties are both fulfilled. Such provision parallels articles 18 and 19 of the Model Law.
Moreover, awards, in principle, cannot be reviewed on their merits and challenged for errors in the application of the law, unless the parties have expressly agreed to such a remedy or the same is contemplated by special provisions of law. Of course, awards can always be set aside if they conflict with public policy, but this ground is only rarely applied by Italian courts.
Furthermore, arbitral tribunals are deemed to perform a jurisdictional function. Indeed, article 824-bis CCP expressly states that awards have the same effects as judgments.
In addition, the role of the Italian state courts is tailored in such way as to assist the parties and arbitral tribunals in the organisation of the proceedings, their intervention being limited to cases of stalemate that the arbitral tribunal may not overcome. For instance, the last paragraph of article 832 CCP – which is dedicated to institutional arbitration – calls for the intervention of national courts in the only case where the relevant arbitral institution refuses to administer the procedure.
Both laws require that, to be valid, an arbitration agreement must be in writing (article 7.2 of the Model Law and articles 807.1 and 808.1 CCP). However, pursuant to article 4.2 of Law no. 218 (1995), where the parties have excluded the jurisdiction of Italian courts to vest it with a foreign-seated arbitral tribunal, the written form is only required for evidentiary purposes.
The Model Law and Italian law are slightly different as to the regime applicable to the challenge of the arbitrators. According to article 13 of the Model Law, if the parties do not indicate what the relevant procedure is, it is for the arbitral tribunal to decide. In this latter case, the parties may challenge the decision of the arbitral tribunal before the national courts. To the contrary, the CCP provides that it is always for the national courts to decide on the challenge of an arbitrator (article 815). Such rule does not apply whenever the parties opted for an administered arbitration. In that case, according to article 832 CCP, the institutional rules prevail.
The difference between the Model Law and Italian law is more evident as to the regime of interim measures. Article 17 of the Model Law grants to the arbitral tribunal the right to issue interim measures enforceable by the national courts, or preliminary orders ex parte which are directed only to the parties and do not require the intervention of the national courts, while under Italian law (article 818 CCP) the power to grant interim measures is reserved to state courts.
Admittedly, in this respect Italian law deviates from the trends prevailing in international arbitration and lags behind the most advanced jurisdictions. The importance of this provision, however, should not be overestimated.
First, article 818 CCP does not mean that arbitrators cannot grant provisional measures at all. The best view is that the only effect of article 818 CCP is to exclude that provisional measures granted by an arbitral tribunal are enforceable by an Italian court. Indeed, an arbitral tribunal sitting in Italy may order provisional measures, and these measures may still be of use to the parties to the extent that they can be spontaneously complied with or enforced by a foreign court.
Second, the prohibition set out by article 818 CCP applies “except if otherwise provided by the law”. One such exception can be drawn from article 832 CCP, according to which if the parties have submitted their dispute to an administered arbitration, the relevant institutional rules prevail over any conflicting provisions of the CCP.
Furthermore, the Model Law and Italian law partly differ in relation to the means of recourse against the awards and to their recognition.
As regards the setting aside of an award, article 829.1 CCP parallels article 34.2 of the Model Law but for the fact that it provides for certain additional grounds on the basis of which the validity of the award can be challenged. In fact, under Italian law an award can be set aside also if:
Pursuant to article 831 CCP, awards can also be challenged through two other mechanisms: “revocation” and “opposition by a third party”.
Revocation is an extraordinary means for challenging awards that are affected by serious “vices” (as set out in article 395 CCP), such as fraud of a party, forgery or discovery of unknown documents, fraud of an arbitrator.
As to the opposition by a third party, this remedy can be used in those exceptional cases in which a third party can prove that the award prejudices its rights, as it may be the case for creditors when the award is the result of fraud carried out to their damage (article 404.2 CCP).
The Italian law of arbitration regulates in an “arbitration-friendly” way various issues which are simply not addressed by the Model Law.
Among others, one can refer to the following provisions:
To evaluate the quality of the Italian law of arbitration, one must first consider what parties engaged in international business normally look for when they decide to settle their disputes through this special instrument.
Parties choose arbitration instead of national courts for its well-known advantages; this does not mean, however, that by choosing arbitration the parties wish to completely opt out from state jurisdiction. In fact, parties want the award to be not only binding but also enforceable. And the enforcement of the award, as with the enforcement of the arbitration agreement, often requires recourse to the cooperation of one or more state courts. Most importantly, the intervention of state courts is needed when the award is not spontaneously complied with and recourse to the state power of coercion is required to achieve its enforcement.
So, to be “good”, an arbitration law must, inter alia, manage to strike a fair balance between the autonomy of the parties (and therefore of the arbitral tribunal in governing the proceedings) and the control on arbitration state courts have to perform.
The comparison between the Model Law and the Italian law of arbitration carried out above shows that Italian law recognises and promotes party autonomy, while simultaneously safeguarding the jurisdictional nature of arbitration, as evidenced, inter alia, by articles 816-bis, 819 and 824-bis.
Certainly, the Italian law of arbitration is not perfect and can be improved. However, the intersection between party autonomy, powers of the arbitral tribunal and supervision of national courts, seems to offer the parties involved in international business an efficient system – similar and in certain aspects better than the one set up by the Model Law – through which they may efficiently resolve their disputes.