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By Legislative Decree No 149/2022, the Italian Government has implemented a structural reform of the Italian civil justice system. The new provisions include significant changes to Italian arbitration law relating, among others, to the independence and impartiality of arbitrators, new powers for arbitrators to grant provisional relief, and the enforcement of foreign awards. These amendments are now set to apply to arbitration proceedings in Italy instituted after 28 February 2023.
Provisional relief
As anticipated in our earlier post, the most important novelty is likely to be the new power of arbitral tribunals seated in Italy to issue interim measures.
This power requires the parties’ express written consent, to be provided prior to the commencement of the proceedings; for example in their arbitration agreement ( the consent may be provided by reference to relevant provisions in the rules of an arbitration institution designated by the parties).
The new legislation leaves no room for the co-existence of arbitrators’ and national courts’ authority to grant provisional relief: the arbitral tribunal will have exclusive authority after its constitution, whilst, beforehand, such interim measures can be granted by the Italian courts only.
The competent Italian courts will also carry out a supervisory role as:
In both cases, the Italian courts will follow the same rules applicable to the challenge and enforcement of court-ordered provisional measures.
Arbitrators’ appointment, independence and impartiality
With a view to aligning Italian arbitration law with the practice of the main international arbitration institutions, the amendments impose on each arbitrator a duty to disclose, at the time of acceptance of their appointment, the existence or absence of any circumstances that could lead to their challenge pursuant to the relevant Italian law provision (Article 815, para. 1, of the Italian Code of Civil Procedure (“ICCP”)). Failure to submit the statement nullifies the arbitrator’s acceptance. Moreover, the grounds for challenge under Article 815 have been expanded by adding a general provision that allows a party to challenge an arbitrator if there are serious grounds relating to an arbitrator’s independence or impartiality which would impact on the appropriateness of them holding office in the proceedings (“gravi ragioni di convenienza, tali da incidere sull’indipendenza o sull’imparzialità dell’arbitro”). In the lawmaker’s intention, this ground should establish an arbitrator’s duty to disclose all factual circumstances (e.g., the existence of a particular connection / relationship with one of the parties or one of the parties’ counsels) that may undermine an arbitrator’s independence or impartiality, even if only in the perception of the parties (“anche soltanto nella percezione delle parti stesse”).
In addition, in case of a change in circumstances, arbitrators must renew their disclosure statement.
If an arbitrator fails to submit the statement or to disclose any circumstance constituting a ground for challenge, any of the parties will be entitled to request the court to disqualify the relevant arbitrator within 10 days of their acceptance or of the party’s discovery of the undisclosed circumstance (as the case may be).
The new rules also stipulate that, when Italian courts are required to appoint arbitrators, they will have to follow criteria that will ensure compliance with the transparency, turnover and efficiency principles. To that end, the names of the so appointed arbitrators will have to be published on the appointing court’s website.
Immediate enforceability of foreign awards
The reform has also clarified that foreign awards will be immediately enforceable in Italy upon issuance of an ex parte recognition decree by the president of the competent court of appeal.
As a result, an award-creditor will be entitled to commence enforcement proceedings irrespective of a pending challenge to the award’s recognition. However, if a challenge is lodged, the court of appeal may stay enforcement, or suspend the enforceability effect of the award, in the event of serious reasons.
Other amendments
The new legislation also provides for:
22 February 2023
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