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Artibration – guide

Arbitration can be the best and quickest way for you Italian legal dispute. Indeed, Italy is one of those countries with extremely lengthy timescales for any civil proceeding which some of the most important Italian legal literature has considered even as a denial of justice.

A first instance case in Italy takes on average 3 years (up to 5/6 years for complicated cases) for the judgement. This is due to a structural failure of our legal system with a huge lack of facilities and personnel.

Over the years, the Italian legislator has improved the regulation of the civil trial adding some Alternative Dispute Resolution (ADR) procedures.

Arbitration represents one of the oldest ADRs and it is the only one in which the parties address their dispute to one to three judges, called “arbiters”, accepting their decision as it were stated by a governmental judge. Lodo arbitrale is the ruling of such proceeding which is legally binding for the parties who are able to enforce it.

The most important benefit of mediation is its speediness compared with the time lapse of a standard Italian civil claim. Parties are entitled to choose 1. their arbiter(s), hiring professionals specialized in that precise field of law, 2. the language to be used during the procedure 3. the country and the place where the arbitration will be held .

The Lodo is assumed to be confidential unless different agreements between the parties.

A common distinction is made between ritual (regulated by Civil Code) and non-ritual arbitration (regulated by the parties by agreement).

One of the biggest problem which comes with the arbitration consists of construing the arbitration clause, in order to understand which kind of arbitration the parties have chosen for, ritual or non-ritual. This is why the assistance of a professional is strictly recommended. The two kinds of arbitration, as a matter of fact, are different.

The ritual arbitration

Art. 806 of the Civil Code states that parties may solve their dispute by addressing it to an arbiter or a panel of arbiters. Although arbitrations are often used to solve a dispute arising from a contract, parties can decide to resort to it for every kind of dispute, even if it is not related to a contract, unless it concerns an inalienable right.

Parties can apply for arbitration:

  1. To settle any dispute signing the arbitration clause, which can be included in any written agreement. Parties can also agree to apply such clause to the just to some issues of the agreement.
  2. Even in the course of a proceeding, in which case parties must consider that the agreement (compromesso arbitrale) must be written or it should be void.

According to law:

  • in case of uncertainty on the clause’s meaning every dispute will be set by arbitration;
  • the arbitration clause is still valid even in case the agreement is declared void;
  • the Lodo cannot be appealed. However, it is binding for the party who wants to enforce it to deposit it to the District Court where the arbitration has being filed. District Court double checks it and issues an enforcement order granting it with the same effect of an ordinary judgement.
  • The enforcement order can be appealed within 30 days in front of the same Tribunal. As a consequence, Tribunal will issue a Court order (ordinanza) within a short timeframe compared to an ordinary judgement.

Judgement  can be recognized and enforced in any foreign country which has rejoined to the New York Convention of 1958.

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