Arbitral Interim Measures No More Prohibited in Italy: Towards a Renewed Pro-Arbitration Attitude

The present regulation of provisional measures in Italy

Obtaining interim measures (i.e. momentary orders which protect a authorized or factual situation pending the decision of a dispute) in a swift and efficient method is usually of utmost significance for the events concerned in worldwide arbitration, in order to safeguard both the profitability of the long run award or the integrity of the arbitral course of (e.g. proof). It is just not by likelihood, certainly, that — ranging from an preliminary reluctance (in explicit by states) in permitting arbitrators to subject provisional measures —, that is in the present day frequent apply. Only few home arbitral statutes don’t present for the arbitrators’ energy to subject provisional measures. Among these, it’s attainable to say Thailand, Peru, Argentina and, surprisingly, Italy.

Indeed, it’s well-known that artwork. 818 of the Italian Code of Civil Procedure (“ICPC”) expressly forbids the issuance of arbitral interim measures, aside from some restricted exceptions, particularly with regards to company arbitrations and momentary keep of firms’ our bodies’ resolutions. This provision is generally thought of to be one of many foremost causes (probably the primary motive) for the underdevelopment of arbitration in Italy and the rationale behind the enactment of such (out of date) rule was the alleged public character of interim safety.

Hence, provisional measures issued by arbitral tribunals seated in Italy actually should not judicially enforceable (neither in Italy nor overseas, at the least the place the legislation of the seat is taken under consideration in the enforcement of provisional measures), and it’s debatable if Italian courts would implement arbitral interim measures issued overseas. In this regard, whereas the optimistic reply could be clearly preferable, the prohibition of arbitral provisional measures is at present utilized by the resisting celebration as a instrument for opposing the enforcement of international interim orders in Italy.

Law 206 of 2021 and the upcoming modification of the present legislation

The Italian Parliament has lastly realised that the prohibition of provisional measures issued by arbitrators is outdated and, via Law n. 206 of 26 November 2021, it has delegated the Government to enact a new regulation of the topic by the adoption of a legislative decree.

According to artwork. 1, par. 15, letter c), of Law n. 206 of 2021, arbitrators shall be empowered to subject provisional measures in all circumstances the place the events so present. Should this be the case, home courts will solely be entitled to subject provisional measures till arbitrators settle for their mandate and, afterwards, they are going to be solely entitled to implement arbitral interim measures or revise them ought to a celebration file a problem.

This provision is a vital enchancment of the Italian arbitration legislation and clearly exhibits a new pro-arbitration tendency of the Italian legislator, keen to affirm Italy as a well-liked arbitration seat.

It is just not by likelihood that consultants in worldwide arbitration welcomed this innovation very warmly.

Comment

Apart from the plain benefits of the brand new Italian strategy to provisional measures, there are particular features that would wish some clarification in the upcoming legislative decree or in the case legislation associated to it. Below is a listing of the important thing points.

First of all, like in the overwhelming majority of home legal guidelines, it isn’t clear whether or not ex parte provisional measures shall be allowed. In this regard, it will be in our view advisable to depend on the apply of different nations, the place a pragmatic strategy based mostly on a steadiness of pursuits has been taken and endorsed: whereas in basic due course of is to be revered previous to the issuance of provisional measures (thus imposing that each events are heard earlier than the issuance of interim measures), there are particular circumstances the place it’s vital that the interim order comes as a shock, e.g. when it’s possible that the asset which is the topic of the arbitration goes to be offered. In these distinctive circumstances it may be adequate that the preliminary lack of due course of is subsequently rectified: a celebration could also be knowledgeable of the interim order contextually with its issuance and might instantly have the chance to contest it and procure its deletion or rectification. In some circumstances, Arbitral Tribunals adopted the escamotage of recurring to “temporary restraining measures” granted “pending further determination of a request for interim measures”. This appears a great way of balancing the opposing wants outlined above and, certainly, might be a invaluable resolution geared toward avoiding that a celebration nullifies the consequences of provisional measures previous to their issuance.

Another important side considerations the formal requirement that the events expressly present for the arbitrators’ energy to subject provisional measures. While a literal interpretation of this provision appears to require that the arbitral energy to subject provisional measures is ready forth in the arbitration settlement, a affordable (and updated) interpretation of this wording ought to enable arbitrators to subject interim measures in all circumstances the place the events present for the applying of arbitration guidelines which discuss with such a energy.

Moreover, it’ll have to be ascertained whether or not the arbitrators’ unique energy to subject interim measures shall be interpreted in a strict manner, i.e. together with additionally these provisional measures which essentially indicate the imperium of home courts, similar to property freezing. In this regard, because it occurs in the overwhelming majority of international nations, the almost certainly resolution is that – at the least with regard to interim measures requiring the cogent powers of state judges – home courts can have concurrent powers to subject interim measures.

Finally, the upcoming legislative decree should make clear if Italian courts should implement arbitral provisional measures on the premise of an exequatur (i.e. straight conferring binding pressure to the measures) or should subject a separate order reproducing – and if vital amending – the content material of arbitral provisional measures. It is anyway past doubts that the brand new legislative provision overcomes all attainable arguments towards the enforceability of provisional measures issued in arbitrations seated overseas (particularly when the arbitral clause set forth such a energy, both straight or by referring to arbitral guidelines which so present).

Next steps

The legislative decree regulating the topic of arbitral provisional measures in Italy is anticipated to be printed shortly. Thanks to this new regulation, Italy will, lastly, be capable of be a beautiful seat for arbitration proceedings.

It is, anyway, advisable that purchasers drafting their contracts are cautious in making the appropriate decisions with regard to the relevant arbitration guidelines and to the primary features of the arbitration proceedings.

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