The United Sections of the Supreme Court of Cassation recently addressed a case concerning a cooperative that had been sued before an arbitral tribunal by three partners who alleged that their exclusion, which the company had approved, had been illegitimate. The court found that the 30-day forfeiture term to appeal a decision excluding a partner of a cooperative, as provided for by the Civil Code, is applicable even in the presence of an arbitration clause in the cooperative's articles of association.
A recent Supreme Court of Cassation decision examined the long-standing question of how to interpret Article 827(3) of the Code of Civil Procedure, which provides that an arbitral award which partially decides the merit of the dispute is immediately appealable, whereas the award which decides some of the questions raised, without resolving the arbitral proceeding, is appealable only together with the final decision.
The Supreme Court of Cassation recently considered the nullification of an arbitral decision based on a violation of the rules regarding the merit of the dispute, as set out in Article 829(3) of the Civil Procedure Code as modified by Decree-Law 40/2006. According to the previous version of Article 829(2) of the Civil Procedure Code, unless the parties expressly agreed otherwise, an arbitration award could be appealed for a violation of mandatory laws; however, the revised text overturns this clause.
The Supreme Court of Cassation recently ruled on a dispute between two companies which had accepted two separate arbitration clauses. The court decided that the existence of two arbitration clauses governing the same relationship is a question of merit, rather than jurisdiction, which excludes the possibility that the court examining the procedural facts can also decide who is in charge of the dispute.
A recent Supreme Court of Cassation decision examined whether arbitrators can impose on parties mandatory time limits for the expiry of allegations, conclusions and evidence. The decision clarified that – given the power of arbitrators to regulate arbitration proceedings under the Civil Procedure Code – arbitrators can fix mandatory deadlines, provided that the parties have been informed of this in advance.
The Mediation Law – which transposed the EU Mediation Directive into Italian law – originally provided that a large range of disputes could not be brought before civil courts unless the plaintiff had first attempted mediation. However, the Constitutional Court recently overturned the law on the grounds that it exceeded the scope of both the directive and the Italian Constitution by making mediation mandatory.
The introduction of mandatory mediation in Italy for certain types of dispute saw a blossoming of mediation institutions and an upsurge in demand for mediators' services. Reactions to the change over the past two years - in business circles and from institutions, lawyers and mediators themselves - reveal developing attitudes that augur well; however, it is the approach of the courts that is likely to prove crucial.
Mediation has recently become mandatory for many common classes of dispute, with the aim of reducing the vast backlog of civil cases pending before Italian courts. The legislative change has generated great interest in mediation, but has also sparked fierce opposition in some quarters. Overall, it could signal a dramatic and positive shift in Italy's use of mediation.
The Milan Chamber of Arbitration's new rules make it fully competitive with international arbitration venues. Among other things, the reinforcement of the tribunal's case management powers - for example, on the choice of law, the taking of evidence and the admission of new claims - should allow the tribunal to adopt a more balanced and flexible approach to determination without sacrificing reasonable expediency.
The Italy-China Business Mediation Centre for the resolution of commercial disputes among Italian and Chinese companies became operational in 2005. The purpose of the creation of the centre is to capitalize on the experiences of leading mediation service providers in both Italy and China.
The Communications Regulatory Authority requires parties to attempt out-of-court resolution before bringing court proceedings. In a judgment for a preliminary ruling the European Court of Justice has held that national law may provide for mandatory out-of-court mediation procedures as a condition of admissibility to court proceedings on certain conditions.
In a recent judgment the Supreme Court held that the Code of Civil Procedure requirement that the number of arbitrators be uneven does not apply to foreign arbitrations. It also confirms that reference in a contract to standard rules containing an arbitration clause is deemed to incorporate the clause, even if no specific mention is made thereof.
Amendments to the Code of Civil Procedure empower the government to issue statutory instruments on mediation and conciliation in civil and commercial matters and thereby implement the EU Mediation Directive. The directive deals only with mediation in cross-border disputes, but Italy is also implementing it with reference to purely national disputes.
In recent years the Chamber of Arbitration of Milan has pursued an initiative known as the Mediterranean Project. It aims to develop its cooperation with other institutions throughout the Mediterranean region in order to offer efficient resolution of commercial disputes through institutional arbitration and mediation.
In recent months the Milan Chamber of Arbitration has responded to trends in international and online dispute resolution. A new international business mediation service offers flexible rules and venue choices, while a redesigned dispute resolution website allows business-to-business and business-to-consumer disputes to be resolved in a range of languages.
Reports covering the period from 2005 to 2007 show the impressive rate of growth of the various alternative dispute resolution methods in Italy. The recent launch of Project Conciliamo, whereby the courts in the Milan Court of Appeal district will invite parties to attempt mediation with one of a list of accredited mediation providers, is Italy's first example of court-induced mediation.
In a recent case the Supreme Court held that a single arbitral procedure may be initiated in order to resolve a dispute involving substantially identical arbitration clauses in a number of separate but related contracts. This is believed to be the first time the court has ruled on the issue.
The 2006 reforms of legislation on bankruptcy and arbitration in Italy clarified the treatment of disputes arising from a contract containing an arbitration clause where one of the parties to the contract has gone bankrupt. Although some of the new principles have yet to be tested in court, they open the way for a wider application of arbitration with regard to insolvency proceedings.
The Supreme Court has held that, when opposition to the recognition or enforcement of a foreign award in Italy is based on an allegation that the opponent was unable to present its case, it is insufficient to claim a violation of a specific procedural rule of the foreign legal system applicable to the arbitral proceedings; the opponent must prove that it was impossible for it to defend itself.
A recent Supreme Court judgment confirmed that the expiry of the time limit imposed on a party to appoint an arbitrator does not bar the party from appointing an arbitrator later, provided that the relevant appointing authority has not yet designated an arbitrator in accordance with the relevant legal and contractual provisions.