By Legislative Decree No 149/2022 of 10 October 2022 (“2022 Reform”), the Italian Government implemented a reform of the Italian civil justice system, providing several new provisions concerning also national and international arbitration in Italy. The new provisions on arbitration entered into force on 28 February 2023 and apply to arbitrations commenced after that date.
The underlying rationale of 2022 Reform is to make Italy more “arbitration-friendly”, promoting the spread and growth of arbitration as an efficient alternative way to settle disputes.
In particular, the new art. 818 Italian Civil Procedural Code (“ICPC”) empowers arbitrators to grant interim and provisional measures. This is a significant and remarkable innovation considering that, before 2022 Reform, the Italian Courts had exclusive jurisdiction on interim and provisional measures.
The main features of the new art. 818 (ICPC)
- the agreement of the parties
As anticipated, 2022 Reform has empowered arbitrators to grant interim and provisional measures only if the parties expressly provide that in the arbitration clause or, in any case, in written form before the commencement of the arbitration proceeding. The parties can grant the arbitrators with the power to issue interim measures also implicitly by referring to the rules of an arbitral institution which provide these powers.
For example, the new Arbitration Rules of the Milan Chamber of Arbitration (“CAM”), which entered into force on 2 March 2023, include a new provision on “interim or provisional measure” in compliance with 2022 Reform. Art. 26 of the Rules of CAM establishes that “1. Unless otherwise agreed by the parties, at request of a party, the Arbitral Tribunal 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. 2. Upon the request of the applicant party, the Arbitral Tribunal may grant the order even without notice to the other party, if such notice may seriously harm the applicant’s interests. In this case, with the decision granting the application, the Arbitral Tribunal schedules a hearing within 10 days of the decision in order to discuss the case with the parties and set deadlines for the submission of briefs, if any. At the hearing, or in any case within 5 days of the hearing, the Arbitral Tribunal, having heard the parties, issues an order confirming, modifying or revoking the measure already granted. 3. The Arbitral Tribunal may order the party requesting an interim measure to provide appropriate security for costs as a condition to issue the measure. 4. Any request for interim measures made by a party to a judicial authority does not imply any waiver of the effects of the arbitration agreement or of the request for arbitration, if any”.
- A new balance between the State Courts and the Arbitration Courts
With 2022 Reform, if the parties grant the arbitrators with the power to issue interim measure, the competence of arbitrators is exclusive. In other words, for example, if the arbitration clause provides the competence of arbitrators to issue interim measures, the parties are bound by that provision and they cannot submit their requests for interim measures to Italian Courts.
However, the competence of the Italian Court is not completely barred:
- First, according to the new art. 818 ICPC the parties have to submit their request of interim measure before the Italian Courts, when (i) the sole arbitrator hasn’t accepted its appointment yet or (ii) the arbitral tribunal has not been constituted yet; and in fact, in those cases, the parties cannot wait the appointment or the constitution of the arbitral tribunal to obtain an interim measure; considering the reasons of urgency, the parties shall file their requests with the competent Italian Court;
- Second, the parties shall challenge the interim measures granted by the arbitrators before the competent Italian Court of Appeal. Pursuant to the new art. 818-bis ICPC “An appeal pursuant to article 669-terdecies may be lodged against an order of the arbitrators granting or refusing an interim measure with the court of appeal in whose district the seat of arbitration is located, on the grounds set out in the first paragraph of article 829, mutatis mutandis, and for contrariety to public policy“;
- Third, the enforcement of interim measures granted by arbitrators shall be under the control of the Italian Courts. According to the new article 818-ter ICPC, “The implementation of the interim measures granted by arbitrators is governed by article 669-duodecies and is carried out under the control of the court in whose district the seat of arbitration is located or, if the seat of arbitration is not in Italy, the court of the place where the provisional measure is to be implemented“. And in fact, interim measures issued by arbitrators cannot be enforced by the same without the intervention of the ordinary Court, given the absence of arbitrators’ coercive powers to enforce their decisions.
For further information please contact Samanta Librio and Marta Longoni at milano@dsavocats.it.
