ABSTRACT: On 1st March 2023, the new Arbitration Rules of the Milan Chamber of Arbitration (“CAM”) entered into force. The new Arbitration Rules will apply to all the arbitration proceedings commenced as of 1st March 2023, regardless of the date on which the parties signed the underlying arbitration clauses. Following the entry into force of the new legislative framework introduced by the Cartabia Reform, the new arbitration rules provide for interesting changes, including those regarding the power of the arbitral tribunals to issue provisional measures and the emergency arbitration.
On 1st March 2023, the new Arbitration Rules of the Milan Chamber of Arbitration (“CAM”) entered into force (“2023 Rules”, available at the following link).
In terms of scope of application, the 2023 Rules will apply to all the arbitration proceedings commenced as of 1st March 2023, regardless of the date on which the parties signed the underlying arbitration clauses.
CAM adopted the 2023 Rules in order to implement the main legislative changes introduced by the civil trial reform, pursuant to Legislative Decree 149/2022 (“Cartabia Reform”), which entered into force on 28 February 2023 in accordance with the 2023 Budget Law.
In particular, the most significant amendments of the 2023 Rules concern: (i) the power of the arbitral tribunals to issue provisional measures; and (ii) the revision of the emergency arbitration.
CAM also took the opportunity to reflect in its arbitration rules certain amendments resulting from the analysis of its arbitral practices, including, among others: (i) the broadening of the arbitral orders and measures that CAM can publish for purposes of research; and (ii) the regime governing the filing of the request for arbitration and the reply to the request for arbitration in the so-called “simplified” arbitration procedure.
Below are some brief remarks on the main new features of the 2023 Rules.
I. Powers of arbitral tribunals to issue provisional measures
As mentioned above, the most significant amendment to the CAM arbitration rules concerns the main novelty introduced by the Cartabia Reform, which – as is well known – provided for the right of the parties to grant arbitral tribunals the power to issue provisional measures.
Article 26 of the previous CAM arbitration rules already provided that arbitral tribunals could adopt, upon request of the parties, all provisional and interim measures not barred by the mandatory rules applicable to the proceedings. However, such provision had a limited scope of application, due to the strict limits set forth by the procedural law governing the arbitrators’ provisional powers.
Now, thanks to the Cartabia Reform, the scope of application of Article 26 of the 2023 Rules has been decisively broadened: arbitrators are in fact granted by default, i.e., unless otherwise agreed by the parties, the power to issue provisional measures.
The 2023 Rules also envisage the issuance of provisional measures without hearing the other party (inaudita altera parte), where the summoning of the other party may result in a serious prejudice to the applicant’s reasons.
I.(continued) Repeal of provisional measures with binding contractual effects
It is also worth noting that the 2023 Rules no longer provide for the issuance of provisional measures with binding contractual effects, which had been introduced by the 2019 CAM arbitration rules. Such provision, which represented a solution for the attribution of “provional-like” powers to arbitrators under unchanged legislation, was in fact superseded by the Cartabia Reform, which expressly granted provisional powers to arbitral tribunals.
II. Emergency arbitrator
In parallel to the changes made to the provisional powers of arbitral tribunals under Article 26, CAM also amended Article 44 of the 2023 Rules with regard to the powers of the so-called sole emergency arbitrator, who will now serve until the constitution of the arbitral tribunal. The sole emergency arbitrator will be endowed with the same powers granted to the arbitral tribunals and will therefore be able to adopt, also without hearing the other party, all provisional and interim measures, also of anticipatory nature, which are not barred by mandatory rules applicable to the proceedings.
The rules governing the sole emergency arbitrator are particularly interesting in light of the amendment of Article 818, paragraph 2, of the Code of Civil Procedure introduced by the Cartabia Reform, pursuant to which “before the acceptance of the sole arbitrator or the constitution of the arbitral tribunal, the application for interim measures shall be submitted to the competent judge pursuant to Article 669-quinquies”. Thus, the new Article 44 of the 2023 Rules could determine a synchronous concurrent jurisdiction between the emergency arbitrator and the State court.
III. Content of request for arbitration and reply in simplified arbitration
The 2023 Rules provide for a less restrictive regime with respect to the content of the request for arbitration and the reply to request for arbitration in the so-called simplified arbitrations. In fact, Article 2 of Annex D of the 2023 Rules no longer provides for the sanction of inadmissibility with regard to requests for arbitration and replies that do not contain the circumstances intended to be proved by each means of evidences specified therein.
IV. Extension of the range of publishable measures for purposes of research
Under the new Article 8 of the 2023 Rules, CAM also extended the range of measures that may be published for purposes of research, in anonymous format. In particular, in addition to awards, as of 1st March 2023 also orders and other measures of the arbitrators may be published, unless any of the parties objects to publication within 30 days from the filing of the arbitral award.
Photo: “La lotteria in Piazza Montecitorio” di Giovanni Paolo Panini – Wikimedia Commons
