The informal arbitration (arbitratio irrituale) in Italy after the 2006 reform of the arbitration proceedings.
| Autor | Gianfranco di Garbo |
| Cargo | Attorney in Milan. Partner of the law firm Baker & McKenzie |
| Páginas | 303-307 |
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THE INFORMAL ARBITRATION (ARBITRATO IRRITUALE) IN ITALY AFTER THE 2006 REFORM OF THE ARBITRATION PROCEEDINGS
iAnFrAnCoi
Attorney in Milan
Partner of the law firm Baker & McKenzie
Now that a few years have gone by since the reform of the arbitral proceedings in Italy, enacted by Law No.80/2005 and by Legislative Decree No.40/2006, the time has come to consider the nature, status and future of the informal arbitration (“arbitrato irrituale”), a model of arbitration deeprooted in the Italian practice and regulated for the first time by a law. Radical changes have been made to arbitral proceedings, through the creation of a set of general rules that, notwithstanding some differences, purports to apply to all types of arbitration232
Under one of the few decisions rendered after the reform, both the formal and informal arbitration originate from a mandate to the arbitrators and therefore most of the procedural rules expressly dictated for the formal arbitration apply also to the informal arbitration, for example the power to ask the Court to order the witness to appear before the arbitrators ( (Tribunale di Venezia, decree 10 aprile 2008 in I contratti 10/2008 pag 869 with comment of SANGIOVANNI). Other authors instead believe that the procedural rules dictated for the formal arbitration do not apply to the informal arbitration: VERDE, Arbitrato irrituale in Riv.arb. n. 4/2005, page 672 and BERNARDINI, Ancora una riforma dell’arbitrato in Italia,in Dir. Comm. Int., 2006, 227.
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GIANFRANCO DI GARBO
The reform has indeed given a legal status to informal arbitration, introducing a specific article in the Code of Civil Procedure that enables the parties to agree to grant the arbitrators the power to resolve a dispute by means of a private contract, instead of an award having the same value of a judicial judgment (Art.808 ter).
Considering that, by doing so, the parties renounce to the recourse to ordinary justice, the law requires that the arbitration clause has to be agreed upon in writing which expressly enables the arbitrators to decide the controversy through a contractual determination, called “lodo irrituale or contrattuale” (formal or contractual award) . The law also provides that, in case of doubt with regard to the interpretation of the arbitral clause, the arbitration should be considered as formal (“arbitrato rituale”), thus diverting from a solid case law trend according to which, in case of doubt, the arbitration agreement was deemed to provide for an informal arbitration233
Informal arbitration can take various forms. One of these –common in the past but nowadays almost abandoned in practice– is the literal giving of carte blanche to an arbitrator or arbitrators appointed by the parties, who will write in the terms of a contract on such blank paper. The carte blanche is signed by the parties, and the terms once written in acquire their contractual enforceability on the basis of the parties’ having appointed the arbitrators as their agents to agree on the terms of the...
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