ITALY Law and Practice Contributed by: Maria Chiara Malaguti, Filippo Rossi and Roberto Longhi, PedersoliGattai
confirm them in subsequent proceedings by taking into consideration the seriousness and relevance of the violation.
CCP, the arbitral tribunal’s decision on interim meas- ures may be challenged before the Court of Appeal of the district in which the arbitration is seated. The grounds for the challenging of interim measures are the same as those provided for arbitral awards. 5.3 Security for Costs The Italian CCP allows arbitral tribunals to order inter- im measures, which can include security for costs, as no limitation is imposed. Moreover, the CAM pro- cedural rules currently in place also empower arbi- tral tribunals to order security for costs as an interim measure. 6. Third-Party Funding 6.1 Prevalence of Third-Party Funding Italian law does not prohibit third-party funding (TPF) of claims, and the practice is considered compatible with the Italian legal system. TPF agreements are classified as atypical contracts, and their validity is recognised provided they do not contravene public policy or mandatory rules. In Italy, TPF is also permit- ted in investor–state disputes, as no specific restric- tions apply. Over the past few years, TPF has gained traction in complex, high-value disputes. The rising costs, dura- tion and sophistication of international arbitration have made TPF an attractive option for claimants lacking the resources to pursue lengthy proceedings against sovereign states. The Italian litigation finance market is still develop- ing, with specialised funds and international players increasingly active. While less mature than in common law jurisdictions, a growing share of investor–state dispute settlement cases now involves funders cov- ering legal and procedural expenses in exchange for a share of the proceeds deriving from the (successful) enforcement of the award or from a settlement. Despite this growth, the sector remains largely unreg- ulated in Italy. At the EU level, however, the European Parliament has called for minimum standards on trans- parency, governance and authorisation of funders.
5. Preliminary and Interim Relief 5.1 Types of Relief
The Cartabia reform introduced a dramatic change in existing arbitration rules, previously prohibiting arbitral tribunals from awarding preliminary or interim relief. Law Decree 149/2022 amended Article 818 CCP by providing that “[t]he parties may, also by reference to arbitration rules, confer to the arbitrators the power to grant interim measures in the arbitration agreement or in a separate agreement in writing prior to the com- mencement of the proceedings”. Article 818 CCP further provides that, if the parties have agreed to grant the arbitral tribunal the power to issue interim measures, that power is exclusive: once the arbitral tribunal has been constituted, the parties can thus no longer seek interim relief from domestic courts. There is no limitation as to the types of interim meas- ures that can be issued by arbitrators. 5.2 Role of Domestic Courts Italian courts have the power to grant interim meas- ures only before the constitution of an arbitral tribunal, provided that, after the constitution of the tribunal, pursuant to the amended Article 818 CCP, the parties have conferred on the arbitrators the power to grant interim measures in the arbitration agreement or in a separate written agreement. No distinction is made between commercial and investment arbitration, or between domestic and foreign arbitration; thus, the rule also applies in the case of investment arbitration. An interim measure issued before the constitution of the arbitral tribunal will also remain in force during the arbitral proceedings, unless the arbitral tribunal revokes it or modifies it upon request by a party. The intervention of national courts is, however, contem- plated after the issuance of the interim measures of an arbitral tribunal in the case of challenge and for their enforcement. Indeed, according to Article 818-bis
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