ITALY Law and Practice Contributed by: Luciano Castelli, Gian Paolo Coppola, Claudia Bosco and Matteo Creuso, LCA Studio Legale
7. Procedure 7.1 Governing Rules
trators hold the authority to determine the appropri - ate procedures. However, this freedom comes with a crucial safeguard: the “adversarial principle” ( principio del contraddittorio ). This principle ensures that both parties receive a fair and equal chance to be heard throughout the arbitration proceedings. 7.3 Powers and Duties of Arbitrators Considering the freedom granted by the CCP, arbitra - tors have wide-ranging powers throughout the arbi - tration proceedings, including the specific powers explored in this Guide (see, for example, 6.1 Types of Relief and 8.1 Collection and Submission of Evi- dence ). In 2006, a comprehensive set of rules governing arbi - trators’ duties was established. Among others, an arbitrator must: • uphold independence and impartiality – arbitrators must be and remain free from any influence or bias towards either party throughout the arbitration; • ensure fairness and good faith – the arbitration process must be conducted in a just and equitable manner, adhering to the principles of good faith; • maintain confidentiality – all aspects of the arbitra - tion, including information and arguments present - ed, must be kept confidential by the arbitrators; and • deliver a reasoned and timely award – the arbitra - tors are obligated to issue a well-reasoned decision within the designated timeframe. If an arbitrator fails to comply with the aforementioned duties, they may be held liable for any damages suf - fered by the parties. The same liability also applies if an arbitrator withdraws from office without reasonable grounds. 7.4 Legal Representatives Although Italian law does not require legal represen - tation during arbitration, it is strongly recommended. Ideally, the representative chosen should have exper - tise in both Italian law and international arbitration. The rules on representative mandate apply to the par - ty-defendant relationship, which can be established either with individuals registered as lawyers or with
The CCP acts as the primary source for both litigation and arbitration procedures. Articles 806 to 832 of the CCP specifically govern arbitral proceedings that have their seats within Italian territory, without prejudice to any relevant international conventions. The Cartabia Reform moved the regulation of corporate arbitration into new Articles 838-bis to 838-quinquies. Articles 839 and 840 of the CCP address the recognition and enforcement of foreign arbitral awards. The CCP grants parties flexibility in shaping the arbi - tration process. They can choose to do one of the following. • Establish the rules – this involves explicitly outlin - ing the specific procedures to be followed in the arbitration agreement. Parties can also reference existing national laws or established arbitration rules from institutions. • Empower the arbitrators – parties can choose to grant the arbitrators the authority to determine the procedural rules. This includes the power to address any unforeseen situations not covered by the existing legal framework. The Italian legal system distinguishes between free arbitration ( arbitrato irrituale ) and the standard con - tractual arbitration ( arbitrato rituale ). In standard arbi - tration, the resulting award carries the weight of a judgment, with specific grounds for challenge. Arbitra- to irrituale , on the other hand, deems the arbitrator’s decision as a binding agreement, subject to different legal considerations. Special provisions apply to arbitration proceedings involving labour law, and arbitration proceedings involving individuals and/or companies on the one hand and public entities on the other. 7.2 Procedural Steps Article 816-bis of the CCP establishes a key princi - ple for Italian arbitration proceedings. In the absence of a specific agreement between the parties, either outlined in the arbitration agreement or established prior to the commencement of the proceedings, arbi -
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