ITALY Law and Practice Contributed by: Maria Chiara Malaguti, Filippo Rossi and Roberto Longhi, PedersoliGattai
4.3 Court Intervention The default procedure under Article 810 CCP estab- lishes that, if no agreement is reached on the appoint- ment of arbitrators, the president of the court of the seat intervenes to appoint them. The recent reform of arbitration (Law Decree 149/2022), known as the “Cartabia reform”, introduced the criteria of transpar- ency, rotation and efficiency for the appointments by the president of the court, and the appointments must be published on the judicial office’s website. 4.4 Challenge and Removal of Arbitrators Arbitration regulations referred to in the Model BIT contain specific procedures for arbitrator challenges. In the case of ICSID, arbitrators can be challenged under Article 57 of the ICSID Convention. Furthermore, an award can be annulled if the tribunal was not prop- erly constituted (Article 52 (1)(a)). In Rockhopper , the ad hoc committee annulled the award as the tribunal was deemed to be improperly constituted, because an arbitrator had failed to disclose in his statements at appointment that he had been the subject of criminal proceedings in Italy. In that award, the committee also established very rigorous standards of independence, autonomy and moral integrity, as well as transparency on the part of arbitrators in disclosing their potential conflicts or reasons for incompatibility. Moreover, the Italian Model BIT contains a provision on the challenge of arbitrators (Article 27.2), stating that, if a disputing party considers that an arbitrator does not meet the requirements set out in the same article (see 4.5 Arbitrator Requirements ) or in the UNCITRAL Code of Conduct for Arbitrators in Inter- national Investment Dispute Resolution (as adopted on 7 July 2023), it should send a notice of challenge to the President of the International Court of Justice or the appointing authority, who shall transmit it to the arbitrator concerned. This provision, if included in a BIT, might overlap with the provisions contained in the rules of the arbitral institution chosen by the parties. Finally, under Italian law an arbitrator may be chal- lenged if: • they do not have the qualifications expressly agreed upon by the parties;
• they, or an entity, association or company of which they are a director, have an interest in the case; • they or their spouse are a relative up to the fourth degree, or are a cohabitant or habitual companion of one of the parties, of a legal representative of one of the parties, or of any of their counsel; • they or their spouse have a pending case or seri- ous enmity with one of the parties, with their legal representative, or with any of their counsel; • they are linked to one of the parties, to a company controlled by the latter, to the entity that controls it, or to a company under joint control, by an employ- ment relationship or by a continuous consultancy or paid service relationship, or by other financial or associative relationships that compromise their independence – and furthermore if they are the guardian or trustee of one of the parties; • they have provided advice, assistance or defence to one of the parties at a previous stage of the mat- ter or have testified as a witness; and • there are other serious reasons of convenience, such as those that affect the independence or impartiality of the arbitrator. 4.5 Arbitrator Requirements According to Article 27 of the Italian Model BIT, arbi- trators must be independent of, and must not be affiliated with or take instructions from, a disputing party or the government of a party with regard to trade and investment matters. Arbitrators should not take instructions from any organisation, government or disputing party with regard to matters related to the dispute. They should not participate in the considera- tion of any disputes that would create a direct or indi- rect conflict of interest. They should comply with the UNCITRAL Code of Conduct for Arbitrators in Interna- tional Investment Dispute Resolution of 7 July 2023. In addition, upon appointment, they should refrain from acting as counsel in any pending or new investment protection dispute under this or any other agreement or domestic law. Independence, impartiality and disclosure are also regulated in the Code of Ethics of Arbitrators adopt- ed by the Milan Chamber of Arbitration (CAM) and attached to the CAM Rules of Procedure. An arbitrator who does not comply with this Code of Ethics may be replaced by the Chamber, which may also refuse to
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