ITALY Law and Practice Contributed by: Luciano Castelli, Gian Paolo Coppola, Claudia Bosco and Matteo Creuso, LCA Studio Legale
Furthermore, should one party unilaterally insert an arbitration clause into its general terms and condi - tions (if governed by Italian law), the clause must be specifically accepted in writing by the other party – ie, an acceptance of the overall general terms is not suf - ficient. Otherwise, according to Article 1341 of the Ital - ian Civil Code, the arbitration clause will be deemed null and void. 3.2 Arbitrability Whether a dispute can be settled through arbitration depends on the nature of the rights involved: accord - ing to Article 806 of the CCP, disputes concerning “non-disposable” rights (rights that are considered fundamental and essential to a person or society and that cannot be freely given up, transferred or inherited – eg, those commonly found in criminal law, personal - ity rights and family law) are not arbitrable. In this regard, the nature of a right (ie, if it is or is not disposable) is usually stated by the law itself or clari - fied by case law. For example, the right to life, integrity and privacy, or issues concerning personal status are non-disposable rights. Disputes concerning individual employment agree - ments can be settled through arbitration only if pro - vided by law or by the relevant national collective bargaining agreement ( contratto collettivo nazionale di lavoro ). In addition, Article 808-bis of the CCP introduced the possibility of referring to arbitral jurisdiction even future disputes concerning one or more relationships, including non-contractual relationships, as long as they are specified and as long as the legal relation - ships referred to the arbitrators concern disposable rights. 3.3 National Courts’ Approach Arbitration agreements are mostly enforced by Italian courts. If a valid arbitration clause exists, both parties are obligated to use arbitration to settle disputes until a final award is issued. As regards the law governing the Arbitration Agree - ment, before the Cartabia Reform, the most common approach was to apply the conflict of laws rules (ie,
Law 218 of 31 May 1995, without prejudice to the application of international conventions). Thus, the law governing the arbitration agreement was, by default, the one chosen by the parties – often the same one applicable to the agreement in which the arbitration clause was included. It should also be noted that, according to conflict of laws rules, agreements can be drafted to have separate legal rules apply to different sections of the same agreement. This means the law governing the arbitration clause might differ from the law that applies to the remainder of the agreement. Under the revised Article 822 of the CCP, parties to an arbitration agreement have more flexibility in choos - ing the law that will govern their arbitration. They can now specify this law in two ways: (i) within the arbitra - tion agreement itself, or (ii) through a separate written document entered into before the arbitration proceed - ings begin. 3.4 Validity Article 808 of the CCP separates the validity of the arbitration clause from the validity of the agreement in which the arbitration clause is included. This means that even if the agreement is found to be invalid, the arbitration clause can still be considered valid and enforceable. In the arbitration agreement, the parties can decide how the arbitrators will be appointed. The only limita - tion that exists concerns the number of arbitrators, which can be one or more, but always an odd number to avoid deadlock situations. In this respect, Article 809 of the CCP provides that if an even number of arbitrators is indicated, an addi - tional arbitrator shall be appointed by the president of the court competent for the arbitral seat. 4. The Arbitral Tribunal 4.1 Limits on Selection While there may not be mandatory qualifications for arbitrators, choosing someone with expertise in the specific dispute benefits all parties. For the arbitrators, professional ethics dictate that they should decline
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