This is an Insight article, written by a selected partner as part of GAR's co-published content. Read more on Insight
The new challenges presented by Brexit and by the covid-19 pandemic have seriously affected business and the circulation of wealth throughout the world, thereby changing the ordinary ways of administering justice.
The coronavirus outbreak has indeed revitalised certain legal mechanisms such as force majeure and hardship, and is likely to lead to a renegotiation of pending contracts, perhaps including arbitration clauses so as to allow parties to solve disputes without incurring the delays that have become commonplace in the ordinary courts as a result of the lockdown.
As far as Brexit is concerned, the regulations governing the enforcement of judicial decisions within the EU member states will no longer be applicable to the United Kingdom; while on the other hand, the New York Convention on Arbitration will still be in force. This will have a direct consequence on the use (or reappraisal) of arbitration as a means of dispute resolution within the EU.
- Italian arbitration proceedings statistics (focus on the Milan Chamber of Arbitration);
- Main procedural figures of the Italian arbitration proceedings;
- Appeal and Enforcement of the arbitration award in Italy;
- Arbitration in Italy during and after the covid-19 pandemic: force majeure and Hardship clause issues;
- Brexit and impacts on the future arbitration proceedings in Italy;
- Overall perspective and predictions for the future of arbitration in Italy
Referenced in this article
- Emergency Decree No. 18 of 17 March 2020 (the ‘Italy Care Decree’);
- Act No. 27 of 24 March 2020 (Conversion of Law Decree No. 18 of 17 March 2020);
- EU Regulation No. 1215/2012 of the European Parliament and of the Council of 12 December 2012;
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’), effective since 7 June 1959
- Italian Code of Civil Procedure, approved by Royal Decree No. 1443 of 28 October 1940
- Arbitration Rules of the Milan Chamber of Arbitration, entered into force on 1 March 2019
The end of 2019 and first half of 2020 have been characterised by the progressive growth and spread of the covid-19 pandemic throughout the world. In addition, the withdrawal agreement between the EU and UK entered into force at the beginning of the year, starting the transition period that is supposed to lead to a complete delivery of Brexit by the end of 2020.
The covid-19 pandemic and Brexit are two challenges that will have an impact on domestic and international arbitration over the long term.
As we will see, the covid-19 pandemic has already influenced the current approach to managing arbitration. In fact, all of the main Italian arbitration tribunals were able to avoid any kind of backlog that might have arisen due to the lockdown – imposed by the emergency legislation approved by the Italian government – by managing hearings using information technology and, in some cases, even the old fashioned but never forgotten telephone.
Amid the chaos and difficulties caused by the covid-19 pandemic, ADR procedures in general and arbitration in particular offer a sort of life preserver for any enterprises or companies that need, today more than in the past, to have their disputes resolved as quickly as possible.
Furthermore, in the uncertainty surrounding Brexit, as it is impossible to forecast whether the result will be a deal or no deal, a hard Brexit or a soft Brexit, arbitration has once again turned out to be a sort of wild card that can help companies and businesses reduce the uncertainty surrounding the judicial framework. One aspect, however, is certain: Brexit will not affect the New York Convention on arbitration, which will continue to apply regardless of the outcome (see below).
Arbitration proceedings in Italy: an overall perspective
Although Italy does not stand at the forefront of the tradition of international arbitration, alternative dispute resolution practices are gaining a progressively relevant role among the business community as an ordinary way to settle disputes, especially in corporate, banking and intellectual property matters, and this trend is likely going to increase in the post covid-19 period, as discussed below.
This scenario was outlined in a relatively recent report aimed at describing the state of the art of ADR in Italy under both qualitative and quantitative parameters. Moreover, a longstanding study by the Chamber of Arbitration of Milan highlighted that recourse to arbitration has been consistent in Italy in the past six years, with more than 300 proceedings in 2018 for an average yearly value of roughly €900 million and 142 arbitrations that were concluded in 2019. This data is essentially due to the fact that the Italian rules governing domestic and international arbitrations grant the disputing parties few but very useful tools for managing disputes in the manner that best matches their business needs.
First, the parties are free to determine the language of the proceedings. Rather than being an issue of lesser importance, this ability encompasses the very nature of arbitration, which often involves subjects (including the arbitrators) coming from different countries and speaking different languages.
In this sense, the choice of procedural language becomes rather important for the peculiar purpose of this form of ADR: the consensual, or at least shared, resolution of the dispute (see article 5 of the Arbitration Rules of the Milan Chamber of Arbitration, entered into force on 1 March 2019, ‘the Rules’). The selection of the proper language of the proceedings is in fact connected to the efficiency of the arbitration itself. From the missives in the early stages of the dispute, to the appointment of the arbitrators, the parties need to know in advance how to communicate with each other, and this will result in considerable savings in both time and costs.
Even evidence-taking procedures can be appreciated under the same perspective, especially when a large amount of non-Italian translated documents is involved: with particular regard to patent cases, judges have to deal with dozens of documents made up of thousands of pages, all of which require a sworn translation (in general terms, as for the evidence taking provisions of the Milan Chamber of Arbitration, see article 25 of the Rules).
In addition to the above, parties are offered the option to choose the venue and the ‘form’ of arbitration that better suits their needs. The distance between the venue of the arbitration and the registered offices of the companies involved may not automatically be a weak point, considering (as further explained below) that one of the aspects of the arbitration procedure (and Italy makes no exception) is the flexibility in the general management of the procedure, which can be handled remotely in a relatively easy manner.
Finally, like in other legal systems, in Italy, administered arbitration (ie, an arbitration conducted under the rules of an arbitral institution, such as, for instance, the Chamber of Arbitration of Milan) coexists with ‘ad hoc arbitration’, a procedure conducted by the parties and the arbitrators without the assistance of an administering entity. Because of the specific characteristics of the dispute (including the peculiar needs of confidentiality that may arise in certain circumstances or the necessity to act outside of imposed procedural schemes) the parties will be free to choose one, rather than the other, form of arbitration.
Arbitration, ADR, and the covid-19 emergency
On 20 April 2020, 12 of the world’s leading arbitration chambers (from Singapore to New York, from Paris to Milan) adopted a common manifesto for the management of arbitration proceedings during the covid-19 emergency and in view of the months to come. In doing so, these institutions – which administer, on average, between 10,000 and 15,000 new arbitration procedures per year – sought to provide stability and predictability to a highly unstable economic environment, ensuring the continuity of pending cases without undue delay. By enabling international arbitration to deliver some degree of certainty, the chambers sought to jointly contribute to a world that is better prepared to meet the challenges of the post-coronavirus crisis and to strengthen trade relations between companies in different countries. As demonstrated across the globe on a daily basis, cooperation and collaboration lies at the center of an effective response to covid-19. Collaboration is particularly important, as each one of these institutions looks to ensure they are in the position to make the best use of digital technologies for working remotely through a large-scale use of their respective institutional rules; and any available management techniques that may permit arbitration procedures to progress without undue delay despite such impediments.
Since the very beginning of the pandemic, the Italian government has issued exceptional measures to fight the covid-19 emergency. Of these, it is worth mentioning Law Decree No. 18 of 17 March 2020 (the‘Italy Care Decree’), subsequently converted into Statute No. 27 of 24 March 2020, addressing fundamental aspects of the Italian economy, including a mandatory suspension of most pending and new court actions during the lockdown period between 9 March and 15 April. Between 16 April and 30 June 2020, the courts of each Italian Region determined the procedural and organisational rules for court offices and case management, including hearings, in close consultation with the regional health units and the local bar associations. This scenario included the possibility for hearings to be conducted ‘behind closed doors’ or remotely, either by videoconference or through the exchange of written submissions by counsel for the parties. The courts also had the ability to postpone hearings until after 30 June 2020.
With regard to ADR procedures, one of the most pressing issues for legal practitioners to address was to clarify whether new ADR proceedings could be initiated during the national lockdown.
In this respect, in accordance with the measures adopted by the majority of the Italian arbitration chambers, arbitration and mediation procedures could have been started within the general suspension period without mandatory restrictions. Therefore, unless the ADR procedure had been previously ordered by a judge or represented a condition of admissibility, these proceedings, particularly arbitration, could be started without limitation.
Second, in accordance with the guidelines set forth by the emergency legislation, the clerk personnel and the arbitrators or mediators were allowed to carry out pending procedures remotely, in order to limit, as far as possible, step-backs and delays.
Finally, yet importantly, Italian arbitration chambers took the remarkable step of adopting and instituting telematics and videoconference platforms for the ‘ordinary’ conduction of hearings: these measures allowed (and still allow) proceedings to continue despite the impossibility to hold hearings in person at the premises of the chambers, thus ensuring, especially in arbitration, that the proceedings can come to a close within a reasonable period of time.
The two approaches (through the arbitration chambers and the ordinary courts), which are substantially similar in terms of the measures that were adopted, differ in one aspect: once the pandemic has passed, the national courts will likely return to ordinary means of managing hearings and the proceedings in general, while arbitration chambers, even before the health emergency, used to offer telematic tools for managing both the attendance of the hearings and the examination of witnesses.
As far as the arbitration award is concerned, parties to arbitration have (at least) three particularly important additional advantages, especially in relation to the – nearly inevitable – economic crisis following the general lockdown, namely:
- the possibility to agree a binding term within which the arbitration decision has to be issued;
- the relatively high degree of stability of the arbitration award, in respect of which the Italian Code of Civil Procedure (CCP) offers very few grounds for appeal. In any case, the overriding principle of public policy and national constitutional values (more specifically, the right of defence and due process) must always be respected, notwithstanding any waiver or derogation. Therefore, any breach to these principles and values will be regarded as a mandatory ground for challenging the award; and
- the winning party’s ability to enforce the award without facing particular risks. In fact, the only remedy offered to the losing party consists of challenging the award for formal and procedural vices that are unrelated to the merits of the decision (see below).
Therefore, while arbitration procedures brought before the same authority may differ significantly when it comes to procedural details, they all share a common destiny: the award, once issued, is not likely to be reformed, except for specific and strictly regulated reasons.
All these provisions have a singular purpose: to allow the parties to tailor the arbitration procedure on the basis of their specific needs, which is even more important in times of a health emergency and business contraction. Indeed, the principle of party autonomy is held in high regard by the Italian legal system. Hence, there are several reasons to believe that, despite the almost inevitable economic crisis that will unfold in the months or years to come, arbitration will emerge stronger than before. What once appeared to be a mere theoretical option, or a legal tool reserved to a limited circle of high-turnover companies, nowadays is likely to represent a viable choice for all subjects that are willing to settle actual and potential disputes, in particular those arising from the current emergency and the general lockdown.
For instance, in cases where the application of force majeure and hardship clauses is concerned, parties may conveniently resort to alternative dispute resolution, including arbitration, mediation, conciliation and direct negotiation. Indeed, both force majeure and hardship clauses are expressly provided for in the Italian Civil Code and can be invoked as justifications, under certain circumstances, for breach of contract (force majeure) or for termination of the contract (hardship), regardless of whether the agreement includes clauses to this effect.
That said, while parties are not required to do so, it is Italian best practice to include in every contract specific provisions – perhaps as a combiner to an arbitration clause – governing force majeure and hardship events. In this respect, the current pandemic can be considered a natural event or occurrence that is capable of rendering the performance of a contract impossible. However, the mere existence of the pandemic is not sufficient to justify the breach or the termination of the contract, it also being necessary to prove that the failure to perform the relevant obligations is unexpected and follows as a direct consequence of the pandemic itself.
The emergency legislation of early March 2020 divided Italian national industries into two main categories: those that perform strategic activities and those that do not. Generally speaking, for those business included in the first list, which are less likely to have suffered a severe decrease in turnover due to the economic restrictions, it might be difficult to invoke a force majeure or hardship clause to justify a breach of contract that may have occurred during the pandemic. As for companies engaged in non-strategic activities, which have surely faced production and liquidity issues, one can imagine that it would be easier to successfully invoke the above-cited clauses under Italian law.
On the other hand, even if a business were allowed to remain open during the pandemic, it may be that complying with contractual duties could be harder than before, rendering performance of contractual obligations difficult, imprecise or delayed. In these cases, while it might theoretically be possible to invoke either the force majeure or the hardship clause, Italian case law has consistently held that if a party has to fulfil an obligation during a natural or human event that impacts the ordinary course of business but falls short of a full justification for the breach of contract - in which case courts may award damages - the courts and arbitration chambers will necessarily take into consideration the impact of the event, like covid-19, on the ‘ordinary’ fulfillment of the contract obligations.
In this respect, without an indication of the parties’ intent at the moment in which the contract is executed as to the consequences of a force majeure or hardship event on the contractual relationship, and specifically any potential agreement on reimbursement or indemnification to be paid, it would be necessary to bring the issue before an ADR body.
With specific regard to hardship, parties must bear in mind that the direct consequence of the application of the hardship clause, as provided in the Italian Civil Code, is the termination of the contract. However, it might be the case that both parties have interest in maintaining the contract itself, perhaps in a different form. Foreseeing such scenarios when drafting the contract would therefore be helpful for later renegotiating the contract provisions in cases of extraordinary events. In this situation, the best context for such renegotiations, in terms of time and efficiency, is undoubtedly arbitration or, more likely, mediation proceedings aimed at the mutual search for a new balance of interests.
The enforcement of the award
The enforcement of an arbitration award in Italy is relatively straightforward and does not present any peculiar difficulties. However, as the covid-19 emergency keeps tightening its grasp, parties may have faced (or will face) delays and step-backs in enforcing the award through the ordinary means established by the laws of Italy and, more in general, EU countries.
According to the Italian Code of Civil Procedure, to enforce an award issued in ADR proceedings, a party is initially required to file the award and the contract containing the arbitration clause with the court of the district in which the arbitration was based. The court then limits its review to an assessment of the regularity of the formal elements of the award and, if no issues are identified, declares it enforceable. This passage requires, at any rate, the physical filing of the above-cited documents with the court and cannot be entirely managed remotely.
Starting with this phase, the winning party in the arbitration may have to deal with three potential (and weak) impediments from the opposing party.
In the first place, the opposing party is permitted to file a complaint against the order that denies or grants the enforceability of the award. Italian case law and legal doctrine consistently state that this complaint (which is a means of appeal) may only be brought for challenging specific procedural vices, such as the lack of jurisdiction of the court or the invalidity of the power of attorney. With these limitations, it is therefore clear that this type of action presents very few practical risks.
Once the ability to file this sort of appeal has lapsed, the debtor is allowed to bring two additional challenges to the pre-enforcement and enforcement procedures – the first one upon the service of the writ of execution, and the other one when the enforcement proceedings have effectively started.
These actions are, however, de facto connected to formal and procedural profiles concerning the writ of execution (the former) and the right of the creditor to enforce the award (the latter).
It is therefore clear that there is little opportunity for a party to successfully oppose the enforcement of an arbitral award; so long as all the formalities are respected, the debtor will have no means to pursue opposition proceedings.
A final aspect must still be addressed. According to article 283 CCP, the court of appeal can suspend the enforceability of the appealed award in the presence of ‘serious grounds’.
The evaluation of the appeal court is based on a global opportunity assessment that consists of, on one hand, a summary decision on the validity of the grounds of the appeal and, on the other hand, the economic prejudice that the losing party may suffer if the request for suspension is denied.
That said, on this procedural basis, the courts do not generally grant the suspension of the enforceability of the award.
As outlined above, the suspension decision also involves an assessment on the appeal proceeding itself – in line with the low degree of success of appeals in Italian case law generally, suspension of the enforceability of an arbitration award is particularly rare.
All the above considerations are valuable elements that may be adduced in favour of arbitration at the expense of ordinary lawsuits before the domestic courts.
The key term is ‘time-saving’: predictable and straightforward enforcement procedures represent not only a helpful instrument for the prevailing party, but also a deterrent for the losing party against pursuing specious opposition proceedings to slow down the enforcement of the award.
Specific attention should then be paid to the enforcement of awards involving intangibles rights, namely IPRs, which represent one of the principal means through which companies, inventors and developers obtain income from their investment in research. According to a recent study carried out by the EUIPO, the IPR sectors account for around 42 per cent of the European GDP (worth some €5.7 trillion annually), contributing to as much as 90 per cent of Europe’s exports.
These rights therefore represent a valuable asset to be enforced, especially when it comes to insolvency procedures. The peculiarities of the national public registries (which involve both the strictly-related enforcement proceedings and, for instance, the constitution of security rights of the IPRs), especially the Italian registries, make it advisable to turn to an expert active in that particular field before taking any action that involves registered IP rights.
Arbitration and Brexit
The jurisdiction, recognition and enforcement of judicial decisions across the European Union are currently regulated by the Recast EU Regulation No. 1215/2012, which, broadly, provides for:
- specific rules for determining intra-EU jurisdiction, with rather explicit favour given to the parties’ choice of forum; and
- a relatively fast and simple procedure for decisions issued in one EU member state to be recognised and enforced across the EU countries.
Turning to Brexit, a ‘hard Brexit’ scenario will likely sweep the Recast Regulation away from application within the United Kingdom, with no chance for the United Kingdom, as a non-member state, to rejoin it. As a result, it may be the case that no reciprocal regime would be in place between the United Kingdom and the EU member states for determining the parameters for jurisdiction, recognition and enforcement of court decisions in civil and commercial matters.
In any event, pursuant to article 1, the provisions of the Regulation shall not be applied to arbitration proceedings.
Therefore, the enforcement of arbitration awards is governed by the New York Convention, while the EU Regulation only governs the enforcement of national court decisions. Accordingly, for arbitration procedures, the scenario will remain the same even after the Brexit is concluded. This may, de facto, lead to a wider use of arbitration due to the rather inevitable difficulties and uncertainty that will arise around the enforceability of UK court judgments.
That said, the United Kingdom has been a contracting member of the New York Arbitration Convention since 24 September 1975, and thus – at least in theory – all relevant provisions shall be applied to any award issued by a UK court and be enforced in an EU country. As emblematically stated by Van Haersolte-van Hof: ‘With the New York Convention in place, the enforceability of awards is assured’. However, the reality of the situation might be very different.
Undoubtedly, arbitration proceedings involving the United Kingdom will remain ‘robust and stable’, despite the covid-19 pandemic, with the result that parties seem to have preferred to rely on arbitration rather than on ordinary dispute resolution means.
On the other hand, it must be pointed out that the need for promptness and straightforwardness could be affected by the double passage required by the New York Convention for the recognition and enforcement of the award, and this may lead parties to prefer a jurisdiction in which they are able to both complete the proceedings and enforce the arbitration award.
Again, as observed by Douglas Thomson, ‘as the UK triggered article 50, practitioners from around the world gathered in Milan for the GAR Awards and IBA Arbitration Day’, which is likely to ‘be one of the seats which benefits from any decline in London’s attractiveness to arbitration parties’. In this respect, the Milan Chamber of Arbitration’s secretary general, Mr Stefano Azzali, being well aware that it is too early to predict the impact of Brexit on the arbitration market, has also affirmed:
London is losing part of its appeal for law firms, multinationals and international organisations. It may be a superficial reaction, but it is understandable. The UK will be ‘simply’ a European country, but out of the EU. There is a strong feeling among business people that it will be more difficult to do business with UK counterparties, to circulate money and workers. And as one of the European ‘regional’ arbitration centres, LCIA may lose appeal as well. Maybe not a justified loss, but as a consequence of a more general reaction to Brexit.
The Milan Chamber of Arbitration is appearing, ever more so, as one of the main European alternatives to the London international arbitral hub. Its role in Euro-Mediterranean arbitration may well be strengthened. Rather than being mere speculation, such observations are supported by the statistics of the Milan Chamber, which is indeed gaining an increasingly higher relevance in the European scenario.
Arbitration in Italy is progressively gaining importance in a considerable number of economic fields, including intellectual property. IP is a trans-sector subject matter that involves both corporate and contract law issues, and requires a rapid and – optimally – definitive resolution of disputes.
In this respect, arbitration is a valuable instrument that can be used effectively to break long-standing stalemates that may annihilate any interest in turning to the domestic court to obtain a decision.
The ability to appoint a trusted arbitrator, the limits imposed by the law to challenge the award and the straightforwardness of the enforcement procedures are valid elements that should incentivise parties to include an arbitration clause in all IP-related agreements.
As highlighted in the previous paragraphs, the difficulties that might be faced once the award is issued are strictly connected to respecting the formalities imposed by the law: so long as the formalities are in order, a favourable decision is nearly unassailable and fully enforceable in the case of a breach.
Therefore, the resort to arbitration constitutes an effective solution to all economic operators, not only in the intellectual property field, but also in all those branches of the law that require quick, stable and confidential decisions.
This outcome is particularly timely due to the covid-19 outbreak and the subsequent revitalisation of force majeure and hardship clauses. The uncertainty of future events on the accurate performance of contractual obligations is likely to lead to a renegotiation of pending contracts; to this end, arbitration shall be a paramount tool to assist with the resolution of potential disputes without incurring in the delays that have been sustained by the ordinary courts during the general lockdown.
As far as Brexit is concerned, the regulations governing the enforcement of judicial decisions within the EU member states will be no longer applicable to the United Kingdom. That said, the New York Convention on arbitration will still be in force, with direct consequences on the use of arbitration as a means of dispute resolution within the EU.
It may therefore be predicted with a particularly high degree of certainty that the arbitration, as well as the other ADR instruments, will strengthen and expand their range of application in Italy in the near future.
 P Pouché – N Yarrow, ‘ARB-Italia: Italy’s continuing commitment to arbitration’, in Inside arbitration - perspectives on cross-border disputes, 8, 2019, 29 ff. See also: T. Giovannini – V. Renna, ‘The Italian experience of arbitration and the arbitration rules of the Chamber of Arbitration of Milan: a parallel view’, in Vindobona Journal of International Commercial Law and Arbitration, 14, 2010, 297 ff.
 In general terms, in 2016, the alternative justice proceedings in Italy were roughly 275,000 while only 100,000 back in 2008.
 See ‘Decimo Rapporto sulla diffusione della Giustizia Alternativa in Italia’ (ie, ‘Tenth Report on the diffusion of Alternative Justice in Italy’), available at https://www.cameraarbitrale.it/upload/documenti/centro%20studi%20pubblicazioni/10-decimo-rapporto-giustizia-alternativa.pdf.
 CAM Arbitration – Facts & Figures 2014, available at https://www.cameraarbitrale.it/upload/documenti/statistiche/2014-cam-arbitration-facts-figures.pdf. CAM Arbitration – Facts & Figures 2015, available at https://www.cameraarbitrale.it/upload/documenti/statistiche/2015-cam-arbitration-facts-figures.pdf. CAM Arbitration – Facts & Figures 2016, available at https://www.cameraarbitrale.it/upload/documenti/statistiche/2016-cam-arbitration-facts-figures.pdf. CAM Arbitration – Facts & Figures 2017, available at https://www.cameraarbitrale.it/upload/documenti/statistiche/2017-cam-arbitration-facts-figures.pdf. CAM Arbitration – Facts & Figures 2018, available at https://www.cameraarbitrale.it/upload/documenti/statistiche/arbitration-facts-figures-2018.pdf. CAM Arbitration – Fact & Figures 2019, available at https://www.camera-arbitrale.it/upload/documenti/statistiche/arbitration-facts-figures2019.pdf
 C Mandrioli – A Carratta, Diritto processuale civile, Vol. III, Giappichelli, Turin, 2016, 471, footnote 182.
 C Consolo, Codice di procedura civile commentato, Ipsoa, Milano, 2010, 1975.
 Supreme Court of Cassazione, 25 February 2005, No. 4060, in Pluris.
 EUIPO, ‘Intellectual property rights intensive industries and economic performance in the EU’, 2016.
 D Thomson, ‘Brexit begins’, in GAR, 2017.