ITALY Law and Practice Contributed by: Luciano Castelli, Gian Paolo Coppola, Claudia Bosco and Matteo Creuso, LCA Studio Legale
agreement nor signatories to the contract containing the arbitration agreement can join an ongoing arbitra - tion. The “original” parties involved in the arbitration, the arbitrators and the third party itself must agree for this to happen. A third party is entitled to join either voluntarily or upon the request of another party. However, any third party with an interest in the outcome of the dispute can join the proceedings to support the position of an existing party; similarly, the original parties can always require the involvement of any necessary co-party in the pro - ceedings. Concerns have been raised in this regard. Since the third party cannot appoint an arbitrator of its choice, some argue that this might undermine the integrity of the arbitral tribunal. This issue is still unresolved. The rules of the Milan Chamber of Arbitration dele - gate any decision on the joining of a third party to the arbitral tribunal, which will consider the position of all parties involved and the specific circumstances of the case to take a decision. Overcoming the restriction established by the old Arti - cle 818 of the CCP, the new Article 818 authorises arbitrators to grant provisional measures. This is an innovation for the Italian legal framework, which had remained “de facto” isolated from other European legal systems that have long recognised such pow - er. This means that the arbitrators will now have the power to issue any sort of interim measure depending on the law applicable to the arbitration proceedings. The parties can grant the arbitrators such power in two ways: (i) by explicitly stating it in the arbitration agreement or in a subsequent written deed prior to the commencement of the arbitration proceedings, or (ii) by referencing a set of rules that grant arbitra - tors the power to issue interim measures. Since most major arbitration institutions already have such rules, this simplifies the process in most of the arbitration proceedings. 6. Preliminary and Interim Relief 6.1 Types of Relief
In addition, Article 816-bis(3) of the CCP empowers the arbitrators to issue a preliminary award and a pre - liminary order on all matters involved in the arbitration proceedings, which can be reviewed and potentially modified by the arbitrators later in the proceedings. 6.2 Role of Courts Article 818 of the CCP introduces exclusivity for arbi - trators in issuing interim measures. If the parties grant this power to arbitrators, courts can only intervene pre-emptively – meaning before the arbitrator officially accepts the appointment, without such an applica - tion being deemed to be a waiver of the arbitration agreement. Once the arbitrator takes on the case, the court’s authority to issue these measures is perma - nently lost. Parties may appeal interim measures issued by arbi - trators before the court of appeal. However, appeals are limited to the specific grounds stated in Article 829 (1) of the CCP or if the measures violate the public order. While appeals are handled by the court of appeals, the enforcement of interim measures shall, instead, be carried out under the supervision of the ordinary court of first instance. In this respect, new Article 818-ter provides that interim measures granted by arbitrators shall be enforced under the control of the court in whose district the arbitration seat is located. If the seat of arbitration is not in Italy, the competent court will be that of the place where the interim measure must be implemented. 6.3 Security for Costs Italian law does not include any specific provisions concerning security for costs. However, some scholars argue that security for costs may be ordered by arbitral tribunals under the condi - tions provided by the law applicable to the arbitra - tion proceedings (ie, provided that the parties have expressly granted arbitrators the power to issue interim measures or have referred to an institutional regulation in the Arbitration Agreement that explicitly gives the arbitrators such power, including the power to grant security for costs).
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