The New Arbitration Rules of the Milan Chamber of Arbitration

Most European jurisdictions either grant arbitrators general power to issue interim or provisional measures unless the parties agree otherwise or allow the parties to confer such powers by mutual agreement. Until recently, Italian law expressly prohibited any such arrangement: specifically, Section 818 CCP prevented arbitrators from issuing interim or provisional measures “unless provided by law.”

By contrast, the new version of Section 818 CCP stipulates that the parties may grant the arbitral tribunal the power to issue interim or provisional measures. The parties may do so in the arbitration agreement or by means of a separate agreement preceding the arbitration, possibly by agreeing on arbitration rules providing such power.[1]

Art. 26 of the CAM arbitration rules contemplated said measures even before the recent reform of the CCP. However, for Italian-seated arbitration, interim and provisional measures were “prohibited by mandatory rules applicable to the proceedings” (namely, Section 818 CCP). Now that the prohibition no longer stands, CAM has amended the related provisions of its arbitration rules to strengthen the instrument and regulate it more thoroughly.^[2]

The two provisions reflecting this intention are Arts. 26 and 44 of the CAM arbitration rules, titled “Interim or Provisional Measures” and “Emergency Arbitrator.” The highlights of the reform are:

• The power of the arbitral tribunal to issue interim and provisional measures unless the parties agree otherwise.
• The power of the arbitral tribunal to issue ex parte orders in cases where a notice to the other party would seriously harm the applicant’s interests.
• The requirement for the arbitral tribunal to schedule a hearing for discussion of the case within 10 days of issuing the order.
• The requirement for the arbitral tribunal to issue an order confirming, amending, or revoking the measure after the hearing.
• The possibility for the parties to file an application for the appointment of a sole emergency arbitrator before the constitution of the arbitral tribunal.

The other aspects of interim relief in CAM arbitration remain unaffected by the reform. In particular:

• The measures can be both conservatory (e.g., a freezing injunction) and anticipatory (i.e., provisionally granting any such relief as the arbitral tribunal may grant in an award).
• The arbitral tribunal may order the applicant to provide adequate security.
• A party’s application to the judicial authority does not imply a waiver of the arbitration agreement or of the request for arbitration.

CAM also amended Art. 8(2) of the arbitration rules, titled “Confidentiality.” The provision allows CAM to publish redacted copies of arbitral awards for research purposes, unless one of the parties objects to the publication within 30 days of the filing of the arbitral award. The amended wording of Art. 8(2) refers to procedural orders and measures in addition to arbitral awards. Hence, it also covers interim and provisional measures and will surely further the related academic and professional research.

The CCP reform finally dismantled another supposed prerogative of state imperium in favor of party autonomy, aligning Italian legislation with the position of the international and domestic arbitration communities. The CAM arbitration rules were ready for this shift. In their latest version, they are designed to render provisional and interim measures in arbitration even more effective and robust than the legislature envisaged by expressly allowing ex parte orders and, at the same time, safeguarding equality of arms with adequate checks and balances.[3]

[1] For more information on the reform of the CCP, see: https://portolano.it/newsletter/portolano-cavallo-inform-litigation-arbitration/italian-legislative-reform-the-groundbreaking-choice-to-bet-on-international-arbitration; https://portolano.it/newsletter/portolano-cavallo-inform-litigation-arbitration/new-rules-on-italian-civil-proceedings-a-step-forward-in-improving-the-italian-court-system.

[2] The 2023 CAM arbitration rules are available in English at: https://www.camera-arbitrale.it/upload/documenti/arbitrato/cam%20arbitration%20rules-2023.pdf.

[3] Some commentators believe that under the amended CCP, arbitrators may also issue ex parte orders in ad hoc arbitration under the general provisions on interim relief, which also set forth the related due process safeguards. See, e.g., Salvaneschi, L. (2023). “Le nuove norme in materia di arbitrato.” Rivista di Diritto Processuale 2, 738.