INTERNATIONAL ARBITRATION IN ITALY

Transcription

1 NYSBA International Section Seasonal Meeting Vienna, Austria Friday, October 17 th 2014 HOT TOPICS IN INTERNATIONAL ARBITRATION AND INTERNATIONAL LITIGATION INTERNATIONAL ARBITRATION IN ITALY Donato Silvano Lorusso BLB Studio Legale 1

2 General overview of arbitration in the Italian legal system The length of arbitral procedures Story of a success: the Milan Chamber of Arbitration The appeal of arbitration awards: a research from Bocconi University 2

3 GENERAL OVERVIEW OF ARBITRATION IN THE ITALIAN LEGAL SYSTEM 3

4 Rules on Italian arbitration are to be found in: - The Code of Civil Procedure (c.p.c.), at Section VIII, articles 806 to 840, as well as - Multilateral and bilateral conventions ratified by Italian Government Italian law distinguishes between: ad hoc arbitration administred arbitration clausola compromissoria the agreement to submit to arbitration future disputes traditional arbitration (arbitrato rituale) compromesso the agreement to submit to arbitration disputes which have already arisen arbitration in which awards do not have the nature of a judgment but rather of a contractual settlement (arbitrato irrituale) 4

5 FEATURES! Mandatory rules, applicable to any kind of arbitration, include: the equal treatment of the parties the right to be heard the principle of due process in general! Most of the procedural rules contained in the c.p.c. are not mandatory. The highest number of rules and principles set forth by the Italian legislation concern the role and office of the arbitrators. The Italian arbitration rules have experienced two wide 5

6 The 2006 reform is particularly important since it repealed the former distinction between domestic and international arbitration, that now follow under the same discipline. The only remnant of that distinction can be found in the provision of article 830: whenever a dispute arises from a subjectively international contract, the Court of Appeal requested to annul an arbitral award may directly decide the merits of the case only if required by all the parties. Other issues addressed by the reform are arbitrability, form and scope of the arbitration agreement, rights and duties of the arbitrators. The reform seems to meet the users needs given the always growing numbers of cases submitted to arbitral tribunals. 6

7 THE LENGTH OF JUDICIAL PROCEEDINGS IN ITALY 7

8 Average length of an arbitral procedure 230 days CEPEJ (The European Commission for the Efficiency of Justice), 2014 Average length of a civil procedure 590 days ISDACI,

9 STORY OF A SUCCESS: MILAN CHAMBER OF ARBITRATION 9

10 Special agency of the local Chamber of Commerce, founded in 1987 and since then active in the field of mediation and national and international arbitration. THE NUMBERS: Highest number of procedures: 138 in 2012 (equal to the 18,5% of all Italian proceedings) and 167 in 2013, with a registered increase of the 21%. With the highest medium value: in 2013 ( in 2012). When it comes to international arbitration figures, nowadays in Italy more than 90% of the procedures are administered by the Chambers of Commerce; the Arbitration Chamber of Milan is prominent in this field too, with its 25 international arbitrations in 2011 and 33 in

11 THE REASONS FOR THE SUCCESS A wide net of partnerships with other Chambers and Mediation Entities, spread across the entire national territory thus granting the right promotion to local realities. The Chamber Rules of Procedures, which present the simultaneous advantages of being technically well composed, with a high recognition of the parties freedom. The Chamber offers the parties and the arbitrators support in the organisation of the proceedings: hearings, that can take place in the Chamber premises, are organised by the Secretariat, who also provides for assistance in the drafting of the minutes of such hearings. 11

12 THE APPEAL OF ARBITRATION AWARDS: A RESEARCH FROM BOCCONI UNIVERSITY 12

13 Article 824-bis of the Civil Code of Procedure The arbitral award has as of the date of its last signature by the arbitrators the same effects of a judgment rendered by a national court. Arbitration awards can be challenged before the Court of Appeal of the place where the arbitration took place on three different grounds: nullity, revision and third party opposition. Milan Court of Appeal alone administers 11% of the national procedures. 13

14 A yet to be published research from Bocconi University analyzed the appeal of arbitration awards in Italy The research focuses on four Courts of Appeal, together representing the 25% of the national figures THE RESULTS! Only 8% of the appealed awards defined administered procedures, while the remaining 92% concerns the ad hoc arbitration.! Annulment rates of the Courts: Brescia 0% Milan 0% Genoa 7% Turin 13%! The general approach of the four Courts towards arbitration procedures through the analysis of this numbers shows an overall acceptance of arbitral tribunals practices. 14

15 The ever-increasing number of arbitrations and the interest of the legislator and of the organs of forensic self-government unequivocally demonstrate that arbitration is becoming increasingly popular. We can definitely say that Italy has achieved a considerable degree of familiarity with national and international arbitration. 15

16 THANK YOU FOR YOUR ATTENTION!!! Donato Silvano Lorusso BLB Studio Legale Milano Roma New York Hong Kong 16