• Search

Commercial Arbitration

Last verified on Thursday 16th March 2017

Italy

Lotario Dittrich, Michele Curatola and Federica De Luca
Lombardi Segni e Associati

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Yes, Italy ratified the New York Convention on 19 January 1968 without any reservations. 

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Among others, Italy is party to the following treaties:

      • 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. 
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1.  The Italian rules governing arbitration proceedings are mainly provided for by articles 806 to 840 of the Italian Code of Civil Procedure (CCP). These provisions apply to arbitral proceedings, which have their seat in Italy (article 816), without prejudice to international conventions in force and insofar as the parties have not adopted specific rules, including by reference to institutional arbitration rules.

      The provisions in question are not based on the UNCITRAL Model law but they do not materially differ from it. 

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. Among the many Italian arbitral institutions, the Milan Chamber of Arbitration (CAM), a branch of the local Chamber of Commerce, has gained an international reputation and is increasingly involved in the administration of international arbitration proceedings. In 2015, the CAM administered 131 new arbitrations: 23 per cent of these cases were international.

      The CAM, through its Arbitral Council, may act as appointing authority in proceedings under the auspices of the CAM Rules, of other rules, and, as of 1 January 2016, of the UNCITRAL Rule.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. In Italy there are numerous arbitral institutions established either by local Chambers of Commerce or by professional orders.

      Nevertheless, a large number of arbitral proceedings are administered by foreign arbitral institutions such as the ICC International Court of Arbitration and the LCIA. 

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. There is no specific arbitration court in Italy. However, national Courts of First Instance provide assistance to parties and arbitral tribunals in the course of the proceedings with respect to the issuance of interim measures, the appointment of the arbitral tribunal and the taking of evidence (see questions 25, 26, 28, and 28). In addition, Courts of Appeal have jurisdiction for the recognition, enforcement and challenge of arbitral awards (see questions 41, 42 and 44). 

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. Pursuant to articles 807 and 808 CCP, an arbitration agreement is null and void if not made in writing. An agreement to arbitrate may be in the form of a specific agreement entered into by the parties once a dispute has arisen, or of an arbitration clause contained in a contract. According to article 807 CCP, when the agreement is exchanged by fax, email, telegraph or telex it is also accepted as being in written form.

       In addition to being in written form, in the case of an arbitration clause, the parties must specify the object of the dispute (article 807 CCP). 

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. Pursuant to article 806 CCP all disputes are arbitrable under Italian law, except those concerning non-arbitrable rights such as criminal and certain family law matters. Employment disputes can be referred to arbitration only if so provided by the law of by national collective employment agreements. Also, disputes between private parties and public administrations acting as a public entity are not arbitrable.

       Both contractual and non-contractual disputes may be submitted to arbitration (article 808-bis CCP).

       Lack of arbitrability is usually treated as a matter of jurisdiction rather than of admissibility of the dispute.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. As a general rule, a third party is not bound by an arbitration agreement. Italian courts have not yet upheld the many doctrines elaborated by other jurisdictions, such as the veil-piercing and the group of companies’ doctrine. Nevertheless, some national courts have extended arbitration agreements to non-signatories in cases of third-party beneficiaries and assignment of contracts.

       Any third party who has an interest in the dispute has the right to voluntarily intervene in pending proceedings in support of one of the party’s defence or to join as a legally necessary co-party, without the consent of either the parties or of the arbitrators being required (article 816-quinquies, paragraph 2, CCP).

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. The CCP does not cover this issue. However, upon parties’ agreement, it is possible to consolidate separate arbitration proceedings arising out of disputes covered by the same arbitration agreement, between the same parties, and provided that the arbitral tribunals were composed of the same individuals.

       In case of an arbitration between the same parties based on multiple arbitration clauses and related to linked contracts, the Italian Supreme Court ruled that parties shall initiate separate proceedings, unless:

      • they agree to have one single proceedings;
      • they appoint a single arbitral tribunal; and
      • the disputes at hand arise out of contracts that contain identical arbitration agreements (Italian Supreme Court, decision No. 12321 of 25 May 2007). 
  11. 11.

    Groups of companies
    Is the 'group of companies doctrine' recognised in your jurisdiction?

    1. The questions of alter-ego, veil-piercing and the group of companies’ doctrine are not entirely settled in Italy (see question 8).

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. As a general rule, arbitration clauses are considered separable from the main contract. The fact that the contract is void does not in itself affect the validity of the arbitration clause contained therein (article 808 CCP).

  13. 13.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?
    1. Pursuant to articles 817 CCP, it is for the arbitral tribunal to rule upon its own jurisdiction and decide on the validity, scope and content of the arbitration clause. Any objection to the validity of the arbitration agreement must be raised in the first brief after the appointment of the arbitral tribunal.

       By the same token, in accordance with article 819-ter CCP, when arbitration proceedings are pending, national courts must refrain from deciding on the validity of the arbitration agreement. 

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. Except for the formal requirements indicated in question 7, there are no further specific requirements for an arbitration agreement to be enforceable and binding under Italian law.

       It may be worthwhile for the parties to indicate the seat of the arbitration in the arbitration agreement. Otherwise, in the absence of an explicit choice by the parties or by the arbitral tribunal, the seat of the arbitration shall be the place where the arbitration agreement was signed. If the parties signed the agreement abroad, the seat will be Rome (article 816 CCP). 

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. There are no specific records in respect of the ad hoc international arbitrations taking place in Italy. However, this has certainly been the trend over the past few years, and recourse to institutional international arbitrations is steadily increasing.

       As to the applicable rules, the UNCITRAL Rules are among the most used ones together with those of the ICC and the LCIA. It is worth noting that on 1 January 2016, the CAM adopted a new procedure to run its services, also under the UNCITRAL Rules. 

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. Article 816-quater CCP provides for the admissibility of a single arbitration proceedings among two or more parties bound by the same arbitration agreement only if:

      • the arbitration agreement provides for the appointment of the arbitral tribunal by a third party;
      •  all the parties agree on the appointment of the arbitrator or arbitrators; or
      • the respondents agree to appoint an equal number of arbitrators as the claimants or agree to the appointment of their arbitrators by a third party.

       If this mechanism fails, the claimant must initiate separate arbitration proceedings against each respondent.

       Pursuant to article 816-quater CCP, second paragraph, if the mechanism fails with respect to proceedings where the participation of multiple parties is required by law, the arbitration agreement becomes inoperative and the parties must bring their dispute to national courts. 

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1.  Unless otherwise agreed by the parties, arbitral proceedings are commenced by written notice sent by the claimant to the respondent, containing the appointment of its arbitrator and the invitation to the other party to designate its arbitrator. If the respondent fails to designate its arbitrator within 20 days after the receipt of the claimant’s notice, the claimant may request to the President of the Court of First Instance at the seat of the arbitration to proceed with the appointment in the place of the respondent (article 810 CCP).

       The limitation periods to bring a claim in arbitration are the same applicable to proceedings before national courts. Generally, the relevant period will be 10 years from accrual of the cause of action with respect to contractual claims and five years with respect to tortious claims. 

    Choice of law

  18. 18.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?
    1. Article 822 CCP provides that the arbitral tribunal shall decide a dispute applying the rules of law, unless the parties have agreed that it shall decide in equity.

       The substantive law of the dispute is determined according to the parties’ express choice. Absent any indication, arbitral tribunals sitting in Italy follow different approaches, including relying on the conflict of rules of the forum.

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Parties are free to appoint as arbitrator the individual of their choice, provided that the appointed individual has the legal capacity to act (article 812 CCP). 

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. There is no preclusion to the appointment of foreign or stateless individuals as arbitrators.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. Unless the parties have identified a specific method of appointment of the arbitrator(s) in the arbitration agreement, the default procedure set by articles 809 to 811 CCP applies. In particular:

      • the arbitral tribunal shall be composed of three individuals;
      • each party to the dispute shall appoint one arbitrator; and
      • the party-appointed arbitrators shall appoint the third arbitrator to act as president of the arbitral tribunal.

      If the one party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to reach an agreement on the third arbitrator, the appointment will be made by the President of the Court of First Instance at the seat of arbitration.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. Pursuant to article 813-ter CCP, arbitrators may be held liable for damages suffered by the parties in the event of:

      • fraudulent or grossly negligent omission or delay in the procedure;
      • resignation without a proper cause; or
      • fraudulent or grossly negligent omission or delay in issuing the award.

       Each arbitrator is only liable for his or her own actions. Where the proceedings are pending, an action for damages can be brought only on the ground sub a) above. In the absence of fraud, compensation for damages cannot exceed three times the arbitrators’ fees. Further, if an appointed arbitrator is held to be liable, the parties do not have to pay that arbitrator’s fees (article 813-ter,paragraphs 3-4, CCP).

       Except for the cases outlined above, arbitrators enjoy the same immunity from liability in tort or gross negligence as national judges (ie, liability cannot arise from either the interpretation of the regulations or the evaluation of the facts or the evidence, see article 813-ter, paragraph 2, CCP and article 2, paragraphs 2 and 3 of Law No. 117 of April 13 1988).

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. Italian law does not contain any provisions on securing arbitrator fees. Arbitral tribunals generally require the parties to provide advance deposits in respect of their fees and expenses. 

      Pursuant to article 814 CCP, the parties are jointly and severally liable for the payment of the tribunal’s fees and expenses. However, the decision of the arbitrators on their expenses and fees is not binding on the parties. Therefore, if the parties challenge that decision, the arbitrators’ expenses and fees will be fixed by the president of the court of first instance at the seat of the arbitration. The ruling of the courts is legally enforceable under Italian law. 

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. Under Italian law, a party may challenge an arbitrator if any of the circumstances enumerated in article 815 CCP is met. In particular, for example, if the arbitrator:

      • lacks the qualifications indicated by the parties;
      • has a direct or indirect interest in the matter at dispute;
      • has a qualified relationships with either party; or
      • has previously provided professional advice, legal aid or defence in favour of either party.

      The challenge must be submitted to the President of the Court of First Instance at the seat of the arbitration within 10 days after the receipt of any disclosure by the arbitrator, or after a party otherwise learns of facts or circumstances that could constitute a potential conflict of interest for an arbitrator.

      A party may challenge the arbitrator that itself has appointed only for reasons that such party becomes aware of after the appointment has been made.

      If the parties fail to replace the arbitrator by mutual agreement, the President of the Court of First Instance at the seat of arbitration will proceed to make the appointment.

      Under the CAM Rules, a party may challenge an arbitrator if circumstances give rise to justifiable doubts as to his or her impartiality. The challenge shall be filed with the Secretariat within 10 days of receipt of the statement of independence and impartiality or from the date when it becomes aware of the ground of challenge (article 19 of the CAM Rules).

      Although they are not applicable unless chosen by the parties, the IBA Guidelines on Conflict of Interest in International Arbitration are often used as a guide to discern situations of potential conflicts, especially in case of administered arbitrations.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. Pursuant to article 818 CCP, arbitral tribunals are prevented from granting provisional measures, unless the law provides otherwise. Therefore, parties may seek the assistance of the national courts, which have the power to issue interim relief before and after the constitution of the arbitral tribunal.

       Italian law does not provide for any specific remedy against the party that commenced court proceedings in breach of an arbitration agreement. Usually, when dismissing a claim for lack of jurisdiction, the national courts order the losing party to reimburse the opponent’s expenses, including lawyer’s fees. Also, if the losing parties acted in bad faith or gross negligence, the opposing party may also claim damages.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. National courts cannot order the payment of a deposit relating to arbitration proceedings.

      In accordance with article 816-septies CCP, the arbitral tribunal may subject the continuance of the arbitration proceedings to the advance payment of foreseeable costs. Unless otherwise agreed, the arbitral tribunal determines the amount that each party shall pay. If a party fails to comply, the other party may pay the entire amount. If neither party complies, the arbitration proceedings are to be discontinued, with the further consequence that parties are no longer bound by the arbitration agreement with regard to that specific dispute. 

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. Unless otherwise agreed by the parties in the arbitration agreement or before the commencement of the proceedings, the arbitral tribunal has the power to conduct the arbitral proceedings in the manner that it deems the most appropriate. In any case, the arbitral tribunal has the duty to ensure that due process is respected, granting each party a reasonable and equivalent opportunity to be heard (article 816-bis CCP).

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. A respondent’s failure to participate in the arbitration will not result in a discontinuation of the proceedings, provided that the other party has duly served the notice of appointment of an arbitrator on the other (inactive) party. As seen above (see question 17), if a party fails to participate in the appointment of the arbitral tribunal, the President of the Court of the First Instance at the seat of the arbitration makes the appointment. The arbitral tribunal will then proceed to an award on the basis of the evidence before it (article 810 CCP). 

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
    1. As provided for by article 816-ter CCP, an arbitral tribunal may hear witness testimony, appoint experts and request written information from public administrations concerning deeds and documents issued by them.

      The use of the IBA Rules on the Taking of Evidence in International Arbitration is not common in purely domestic arbitration proceedings. However, reference to the rules in question is increasing in international arbitrations seated in Italy.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Yes, arbitral tribunals may seek the assistance of national courts to securing the attendance of a witness (article 816-ter CCP).

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. Under Italian civil procedure law, requests for the disclosure of specific documents are permitted in very limited cases (article 210 CCP). On the contrary, there is no specific rule on document production in arbitration. Therefore, the parties and the arbitral tribunal may regulate this stage of the proceedings as they best see fit. The IBA Rules on the Taking of Evidence are increasingly referred to by parties and arbitration as for document production issues.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. While not mandatory, it is standard practice to have a final hearing on the merits.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
    1. Yes, unless otherwise agreed by the parties in the arbitration agreement, the arbitral tribunal may hold hearings, deliberate, sign the award and make any other relevant activity related to the proceedings, in a place other than the seat of the arbitration (article 816 CCP).

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Pursuant to article 823 CCP, the tribunal decides by majority vote. 

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Arbitral awards have the same legal effects as decisions issued by national courts (article 824-bis CCP). Arbitral awards are subject to the same limits of court decisions with regard to disposable rights, for example, punitive damages are not allowed.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Italian law is silent on the issue of dissenting opinion in awards. Article 823 CCP provides that:

      an award signed only by the majority of the arbitrators shall be valid provided that mention is made that it was deliberated in the presence of all the arbitrators and that it states expressly that the other arbitrators were either unwilling or unable to sign’.

      It is common practice for dissenting arbitrators to attach their opinion, if any, to the award.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. Pursuant to article 823 CCP, an award shall provide indication of what follows:

      • the names of the arbitrators;
      • the seat;
      • the parties;
      • the arbitration agreement and parties’ request or requests;
      • a summary reasoning;
      • the conclusions (ie, the dispositive section);
      • the signature of the arbitrator or arbitrators with the indication, in case of majority vote, that the award was deliberated in the presence of all the arbitrators and that the other arbitrators were either unwilling or unable to sign; and
      • date of the arbitrator or arbitrators’ signature.

      Pursuant to article 829, No. 5, of the CCP, an award is null and void if does not comply with the requirements of article 823, paragraph two, No. 5 to 7, namely if it does not contain:

      • a summary reasoning;
      • the dispositive section; or
      • the signature of the arbitrator or arbitrators.
  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. Italian law stipulates a time limit for the arbitral tribunal to render an award. Unless parties agree otherwise, article 820 CCP provides that the final award shall be rendered within 240 days from the date of the constitution of the arbitral tribunal. The deadline in question may be extended (before its expiration) by mutual agreement of the parties or by the President of Court of First Instance at the seat of arbitration upon request of one party or of the arbitral tribunal. The 240-day deadline is extended by 180 days in case any of the following happens:

      • evidence shall be gathered;
      • the arbitral tribunal appoints an expert witness;
      • a partial or interim award is issued; or
      • one of the arbitrators is replaced.

      Pursuant to article 826 CCP, a party may request the arbitral tribunal to correct a clerical error (material errors or miscalculations) or supplement the award with respect of the requirements set out by article 823, paragraph 3, No. 1-4 within one year from the date of the communication of the award. Where the arbitral tribunal has not taken a decision within the period laid down in article 826 CCP, the request for correction may be submitted to the Court of First Instance at the seat of the arbitration. Also the Court of Appeal, seized with a challenge of the award, may correct or supplement it. 

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. There is no specific rule for arbitration proceedings concerning the costs (ie, arbitrator’s fees, institutional administrative expenses (if any), and counsel’s fees). Usually, arbitral tribunals tend to follow the so-called ‘costs follow the event’ rule – that is to say, the losing party should bear the costs of the arbitration proceedings. However, the arbitral tribunal may allocate or apportion the costs between the parties differently, by providing appropriate reasoning.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. The arbitral tribunal can award interest and compound interest. Every year the Minister of Finance determines the applicable rate of interest. Parties may agree on a different rate within the limit established by Italian usury legislation.

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. An award cannot be appealed for reasons concerning the merits of the dispute, unless:

      • the parties had agreed to such appeal;
      • an appeal is provided for by the applicable law – for example, in case of arbitration concerning labour disputes; or
      • the arbitral tribunal ruled on a preliminary issue that was not arbitrable (article 829, paragraph 3, CCP).
  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. Pursuant to article 827 CCP, an award may be subject to recourse for setting aside, revocation or third party opposition.

      Article 829 CCP lists the 12 grounds for challenging an award and potentially setting aside as following:

      (i) the arbitration agreement was invalid;

      (ii) arbitrators were not appointed according to the mandated provisions;

      (iii) the award was rendered by an arbitrator lacking legal capacity;

      (iv) the award exceeds the scope of the arbitration agreement;

      (v) the award does not provide a summary reasoning, the conclusions, ie, the dispositive section, and the signature of the arbitrators;

      (vi) the award was rendered after the expiration of the time limit set forth by article 820 of the Italian Code of Civil Procedure;

       (vii) formalities required by the parties under express sanction of nullity have not been respected by the arbitral tribunal and the nullity has not been cured;

      (viii) the award is contrary to a previous award or court judgment that finally settled the matter between the parties, provided that such award or judgment had been filed in the arbitration proceedings;

      (ix) breach of due process during the arbitration proceedings;

      (x) the award does not decide the merits of the dispute and the arbitral tribunal was requested to decide upon it;

      (xi) the award contains contradictory decisions; or

      (xii) the award does not decide some claims or objections put forward by a party to the arbitration proceedings.

      Challenge of the award for non-compliance with the law is permitted only in limited cases (see question 41).

      Challenges to arbitral awards shall be brought before the Court of Appeal of the place of the seat of arbitration within 90 days from the service of the final award or, if has not been served, within one year from the date of the last signature of the arbitrator or arbitrators. A notification of the award made by an arbitral tribunal or an institution administering the proceedings does not trigger the 90-day time limit.

      Pursuant to article 831 CCP, the action for revocation can be instituted in case of fraud by a party or an arbitrator, discovery of forged evidence, or discovery of crucial documents concealed by a party during the arbitration proceedings. The action must be brought within 30 days from the date upon which the party became aware of the ground of revocation.

      Furthermore, in accordance with article 831 CCP, a third party may challenge the award within 30 days from the date upon which he or she became aware of the award, if it affects that third-party’s rights, or it is the result of a fraud against that third party.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. Parties may waive their right to recourse for setting aside only after the award has been issued. Despite any agreement between the parties, an award can always be challenged if it violates public policy provisions. In any case, a party is precluded from raising grounds for setting aside that it contributed to cause or that it waived and cannot challenge the award for a violation of a procedural rule that it failed to raise in a timely manner (article 829 paragraphs 1-2 CCP).

      Pursuant to article 831 CCP, parties cannot exclude their right of revocation of the award.

      Finally, any agreement between the parties in relation to the third-party opposition does not affect the third party’s right to promote such action. 

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. Article 840 CCP does not allow the enforcement of a foreign award set aside by the courts at the place of arbitration. To date, we are not aware of any domestic case law discussing this matter.  However, it could be argued that the enforcement of a foreign award could be granted if the foreign judgment setting such award aside was rendered on grounds that would make such judgment unenforceable in Italy.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. Case law shows a pro-arbitration approach of Italian courts. For example, according to data collected by the Milan Court of Appeal, only 3 out of 38 requests for recognition and enforcement of foreign awards filed with the same court from 2005 to 2012 were rejected.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. A state or a state entity is allowed to raise a defense of state or sovereign immunity at the enforcement stage.  Italian courts usually distinguish between sovereign and non-sovereign assets.  An award is likely enforced only against non-sovereign assets, that is to say, assets that do not fulfill a sovereign function.

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. Proceedings are generally conducted in private, even if there is no statutory provision relating to confidentiality. 

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. There is no general confidentiality requirement under Italian law. Therefore, unless the parties have agreed otherwise, a party may use evidence obtained in other proceedings.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. Counsel and arbitrators that are admitted to the Italian Bar are bound by the Code of Ethics of the Italian Bar Association. This Code also applies to foreign counsel with respect to the activity carried out in Italy (article 3 of the Code Of Ethics, Official Journal, No. 241 of 16 October 2014).

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. The main assumption is that parties and arbitrators are free to tailor the procedure to their needs and can rest assured that domestic courts will not interfere with the arbitral proceedings.  Courts only intervene if parties or arbitrators so request in case of critical situations (ie, appointment or substitution of arbitrators, interim measures, summons of witnesses, etc). 

Interested in contributing to this Know-how?

E-mail our Co-Publishing Manager


GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.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?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.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?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?