Author: Vincenzo Vigoriti*
Published: March 1990
| Jurisdiction: Italy |
Topics: Categories of Disputes Arbitrability Agreement to Arbitrate Enforcement of Arbitral Awards Enforceability Interim Measures of Protection New York Convention |
Description: The field of international arbitration was once limited to the regulation of disputes between states; now, however, it encompasses disputes involving private parties. In international commercial arbitration, at least one of the disputants is a foreign state or a citizen or resident of a foreign country, or a commercial relationship is carried out within the territory of a foreign state.
International and domestic arbitration may be ad hoc or institutional. In an ad hoc arbitration, the parties establish in their arbitration agreement the structure of the proceedings. In order to prevent obstructionist behavior in the future, they also specify the arbitral mechanism that will be used should a controversy arise. In an institutional arbitration, the parties indicate a particular arbitral institution to which they agree to submit future controversies.
International arbitration in Italy does not necessarily conform to Italian procedure; the parties, or a particular institution, can determine whether or not the arbitrators will abide by the same set of norms as those followed in Italian arbitration. However, when the disputants do not select the arbitrators, their choice of the arbitration site carries with it the choice of local procedures. In theory, an international arbitration held in Italy is regulated by the same rules of the Italian Code of Civil Procedure as those applicable to domestic arbitration. In practice, applicable Italian rules are most often superseded by rules contained in two international conventions to which Italy is a party: the New York Convention of June 10, 1958, the fundamental charter of international commercial arbitration; and the European Convention on International Commercial Arbitration concluded in Geneva on April 21, 1961.
Despite efforts to reform it, the provisions of the Italian Code of Civil Procedure of 1942 governing arbitration are characterized by open hostility towards arbitration and by a clear diffidence towards foreign jurisdictions. The Code once treated arbitration as an exceptional and anomalous derogation from ordinary jurisdiction, whose predominance had to be affirmed in every situation. This position now seems unacceptable, and should be rejected in favor of one that considers Arbitration, both domestic and international, an essential component of the right of action arid defense guaranteed by the Italian Constitution.
*Full Professor of Law, Univ. of Siena, Member of the Italian Bar.