By Legislative Decree No. 149 of 10 October 2022 (the "Decree 149/2022"), the Italian Government has made significant amendments to the provisions of the Italian Code of Civil Procedure ("CCP") governing the arbitration proceedings. The amendments concern various aspects of the proceedings, such as the independence and challenge of arbitrators, the power to grant provisional measures, and the recognition of foreign awards. Some of the amendments introduced by Decree 149/2022 substantially supplement the rules of the Code of Civil Procedure with the provisions of the regulations of the most important arbitration institutions - e.g., on the independence of arbitrators - and will apply to so-called 'ad hoc' arbitrations.
The most significant innovations include, in particular, the following:
1. the arbitrators shall issue, at the same time as accepting their appointment, a declaration of independence indicating any circumstances relevant to the possible challenge, or the non-existence thereof. With specific reference to challenges, Decree 149/2022 also introduces a new case, which consists in the existence of "other serious reasons of convenience, such as to affect the independence or impartiality of the arbitrator";
2. contrary to the rules previously in force, Decree 149/2022 now expressly grants the parties the possibility of conferring on the arbitrators the power to grant provisional measures. Specifically, the new rules provide that:
- the power to grant provisional powers to arbitrators must be exercised by the parties in the arbitration agreement or by a written deed prior to the commencement of the arbitration proceedings, and the provisional jurisdiction thus granted to the arbitrators will be exclusive. It will therefore be appropriate to consider the issue of attribution of provisional powers to the arbitrators already when the arbitration agreement is drafted. On the other hand, provisional applications formulated prior to the acceptance of the sole arbitrator or the constitution of the arbitration panel should be submitted to the judge who would have been competent to hear the case on the merits;
- an appeal may be brought against the admission a provisional measure, before the court of appeal in whose district the seat of arbitration is located, on the same grounds on which CPC allows an appeal against the award and on the ground that it is contrary to public order;
- the enforcement of the provisional measures shall be under the control of the court in whose district the seat of arbitration is located or, if the seat of arbitration is not in Italy, the court of the place where the provisional measure is to be implemented.
3. the parties have the possibility to indicate, in the arbitration agreement or by written deed prior to the commencement of the arbitration proceedings, the foreign rules or law as the law applicable to the merits of the dispute. Failing this, the arbitrators will apply the rules or law identified under the conflict criteria deemed applicable;
4. the decree which recognizes the foreign award shall declare its effects 'immediately enforceable'. This effect may be suspended pending the opposition to recognition if serious grounds exist. The changes just described represent a significant innovation compared to the previous rules. With the application of the new provisions, in fact, the party applying for recognition shall no longer wait for the enforceability of the award to be decided in the course of the further opposition proceedings;
5. the time limit for challenging the award pursuant to Article 828 of the CCP is shortened from one year to six months.
Decree 149/2022 will take effect as of 30 June 2023 and will apply to proceedings commenced after this date. The provisions previously in force shall apply to proceedings pending on 30 June 2023.
