By Camilla Gambarini, MCIArb, Senior Associate at Withers (London) and Giacomo Gasparotti, Associate at Withers (London)*
Italian and British relations may be traced back to the ancient Roman Republic at the time of Julius Caesar’s expeditions to Britain and subsequent Roman settlements that led to the foundation of Londinium (i.e., London) around 47 AD. Diplomatic and cultural relations intensified over the centuries, including during the unification of Italy in 19th century, to which the United Kingdom provided its support. As of today, despite Brexit, Italy and the United Kingdom remain close trading partners. In October 2021, Italy and the United Kingdom announced the start of discussions on a new export and investment partnership to boost trade between the two countries.
Aside from diplomatic, political, cultural and trade exchanges, Italy and the United Kingdom (specifically, England & Wales) share something more these days. In October 2022, Italy issued the reform of the Italian arbitration law. On the other side of the Channel, in 2021, the Ministry of Justice asked the Law Commission of England and Wales (the “Law Commission“) to review of the Arbitration Act 1996 (the “Arbitration Act” or the “Act“). The Law Commission’s review is still ongoing.
Although Italy and the United Kingdom are based on different legal traditions, the timing of Italy’s and England’s parallel arbitration law reforms makes a comparison possible. This blog post briefly compares and discusses (without purporting to be comprehensive) some key aspects of the two arbitration law reforms of two different – and yet connected – jurisdictions.
By Legislative Decree No. 149 of 10 October 2022 (“Italian Legislative Decree no 149/2022“), the Italian Government enacted a package of amendments to the Italian Code of Civil Procedure (the “ICCP“). Legislative Decree No. 149/2022 constitutes the final step of a civil procedure reform undertaken by Italy within the framework of a broader National Recovery and Resiliency Plan. Italy’s amended arbitration law provisions will be applicable to all proceedings commenced after 30 June 2023. The amendments concern, inter alia, Italy’s arbitration law, which is set out in Book IV, Title VI, of the ICCP.
The Italian reform partly coincides with the ongoing review of the Arbitration Act. The Arbitration Act applies to proceedings seated in England, Wales and Northern Ireland (hereinafter, collectively referred to as “England“). The UK Government asked the Law Commission to review the Arbitration Act, to determine whether there might be any amendments to the Act and ensure that it is fit for purpose to promote the UK as a leading destination for commercial arbitrations.
The review of the Arbitration Act is still at the consultation phase. The process remains relatively far from giving rise to new law. However, after seeking views from the public and consulting the arbitration community at the pre-consultation stage, the Law Commission published an extensive consultation paper in September 2022 (the “Consultation Paper“) containing provisional law reform proposals and inviting the views of stakeholders on 38 consultation questions by 15 December 2022. Some of the current provisional reform proposals might evolve in light of responses received by the Law Commission. However, overall, the Consultation Paper provides a good illustration of the direction of travel for reforming the Arbitration Act.
There are several areas of interest that highlight the differences and similarities between Italy and England in the regulation of arbitration proceedings, particularly: (a) the issue of independence and impartiality of arbitrators; (b) disclosure; (c) confidentiality; (d) discrimination; (e) interim relief; (f) the question of the law applicable to the arbitration clause and the merits of the dispute; and (g) appeals on points of law. These topics are considered in the next sub-sections in turn.
Prior to the recent reform, Italy’s arbitration law did not set out, in general terms, a duty of the arbitrators to be (and remain) “independent and impartial“. However, it provided for six detailed grounds for disqualifying an arbitrator, covering, inter alia, situations in which the arbitrator had an interest in the case, serious enmity towards one of the parties, or specified personal or business relationships with one of the parties.
In line with the UNCITRAL Model law and other arbitration rules, the new Italian law has crystallised the duty of arbitrators to be independent and impartial and has also introduced a broader ground for disqualification, namely the existence of “other serious reasons of convenience such as they affect the impartiality and independence of the arbitrator“.
Traditionally, the Arbitration Act has followed a different approach. Sections 24(1)(a) and 33(a) refer to the “impartiality” of an arbitrator and the duty of the arbitral tribunal to act “impartially“. However, there is no reference to “independence“, which is understood as absence of connections between the arbitrators and the arbitrating parties.
The Consultation Paper questions whether the Arbitration Act should be supplemented to provide for a duty of independence. The Law Commission noted that it was a conscious choice of the legislator of 1996 to avoid imposing a duty of independence. It concurred with the view that “there should be no new express duty of independence” as “[i]t is not practicable in many areas of arbitration” and “[…] what matters instead is that arbitrators are impartial“.
At the same time, the Law Commission recognised that independence is “tied up with impartiality and disclosure“. It conceded that, although impartiality is what matters and there are connections which do not undermine an arbitrator’s impartiality, “some connections are so close that there is at least the risk of unconscious or apparent bias“. It further stressed the role of disclosure as a “demonstration of impartiality” (as discussed below).
Thus, although the Law Commission does not recognise independence as a self-standing duty of the arbitrators, it acknowledges its potential relevance in certain circumstances, at least indirectly or where not addressed by disclosure. It is, therefore, possible that the difference between the English and Italian approaches on independence and impartiality may be more theoretical than practical.
The Italian and British reforms converge on the need to make provision for the arbitrators’ duty of disclosure. It is quite common for arbitration rules to provide that, as part of the appointment process, arbitrators must submit to the parties a declaration of independence and impartiality which can be qualified by disclosures as well as to make provision for the arbitrators’ ongoing duty of disclosure. Even where it is not imposed as a formal requirement, disclosure remains, at the very least, a best practice, as the IBA Guidelines on Conflicts of Interest in International Arbitration show.
ICCP, Article 813(1), as recently amended, now provides for an express duty of the arbitrators to submit a declaration upon accepting an appointment. In the declaration, the arbitrators must disclose “any relevant circumstance for the purposes of [ICCP] Article 815, paragraph 1 [which sets out the grounds for disqualifying an arbitrator], or the absence thereof“. The amended Article 813(1) further specifies that the arbitrators’ duty to disclose is of an ongoing nature, with the arbitrators being called upon to renew their declaration if relevant circumstances have arisen after the appointment.
In England, the Law Commission cited extensively from the Halliburton v Chubb case as well as other sources and decided that the duty of disclosure should be codified in the Arbitration Act, given that the Act was enacted to restate the English law of arbitration.
As to the precise formulation of such a duty, the Law Commission, like the Italian reform, did not suggest introducing disclosure rules which are “prescriptive in technical detail“. Rather, it proposed codifying a general duty, formulated as a duty to disclose “any circumstances which might reasonably give rise to justifiable doubts as to [an arbitrator’s] impartiality“.
Italy’s arbitration law is silent on the confidentiality of arbitral proceedings. The reformed Italian arbitration law has not introduced any default provision on confidentiality.
The Arbitration Act is also silent on the point. The Law Commission discussed the point extensively, analysing the rules of common law and equity which have a bearing on the confidentiality of arbitral proceedings. The Law Commission concluded that arbitrations seated in England and Wales are, by default, private and confidential, although there are exceptions to confidentiality.
The Law Commission also considered whether it would be desirable to codify the existing law on confidentiality of the arbitral proceedings in the Arbitration Act. It provisionally concluded that this would not be desirable or practicable for various reasons, including the existence of a trend towards transparency in certain types of arbitrations, the fact that the law on exceptions to confidentiality is still developing in the decisions of the courts, and the lack of consensus in identifying with precision the limits of confidentiality.
The law in Italy is less clear than in England as to whether or not there is an implicit principle of confidentiality of arbitral proceedings absent an express agreement on the matter. However, the key point is that both countries’ arbitration laws do not take a prescriptive approach to confidentiality, leaving a certain amount of flexibility to the parties.
The Italian arbitration reform has not introduced any express provision dealing with the problem of arbitration agreements specifying who is to be appointed as arbitrator and whether may be regarded as discriminatory (hereinafter referred to as “Discriminatory AAs“).
According to ICCP, Article 815(1) no 1, an arbitrator can be disqualified if she or he lacks “the qualifications expressly agreed by the parties“. It remains unclear whether this provision (and, arguably, one of the grounds for setting aside an award set out in ICCP, Article 829(1) no 2, which covers defects relating to the appointment of arbitrators) may be invoked to enforce a Discriminatory AA. As far as the authors are aware, the point has never come before the Italian Supreme Court. However, equality and non-discrimination are fundamental tenets of the Italian legal system and find expression most notably in Article 3 of the Italian Constitution.
The Law Commission dealt with Discriminatory AAs in the Consultation Paper. The leading English case on Discriminatory AAs is Hashwani v Jivraj, in which the UK Supreme Court upheld an arbitrator appointment made in accordance with an arbitration agreement requiring the arbitral tribunal to be composed of “respected members of the Ismaili community“.
The Law Commission proposed that the Arbitration Act be amended with the inclusion of provisions which render parties’ agreements on the appointment of arbitrators on the basis of “protected characteristics” (as defined in the Equality Act 2010) unenforceable. The Equality Act 2010 defines “protected characteristics” as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. As noted by the Law Commission, “[t]his would be a world-leading initiative and send an important signal about diversity and equality“.
The possibility of arbitrators adopting interim measures used to be one of the most significant points of divergence between the arbitration laws of Italy and England.
In Italy, until recent arbitration reform, the ICCP provided that “the arbitrators cannot issue freezing orders, or other interim measures, unless otherwise provided by law“. In 2020, the Milan Chamber of Arbitration led the change regarding this issue by introducing Article 26, thereby recognising a tribunal’s power to issue urgent and provisional measures provided that they were “not barred by mandatory provisions applicable to the proceedings.”&Բ; However, the main hurdle set out in the ICCP remained.
A major development is the amended version of ICCP, Article 818 which now allows arbitrators to grant interim relief and reads as follows:
“In the arbitration agreement or in another written document predating the institution of the arbitral proceedings, the parties, also by referring to arbitration rules, may confer on the arbitrators the power to grant interim measures. Interim jurisdiction attributed to the arbitrators is exclusive.
Before the acceptance of the sole arbitrator or the constitution of the arbitral tribunal, interim measures applications are to be submitted to the competent court pursuant to Article [ICCP] 669-quinquies“.
The Italian arbitration reform has replaced the prohibition on arbitrators to issue interim measures with an opt-in mechanism, which allows the parties to empower the arbitrators to issue interim relief (including by opting for arbitration under a set of arbitration rules which provide for this). This is a significant step ahead towards a more flexible approach on arbitration provisions. It is crucial that, under the new ICCP, Article 818, once arbitrators have jurisdiction to grant interim relief, such interim jurisdiction is exclusive, thus leaving domestic courts with no concurrent interim jurisdiction.
Under the new ICCP, Article 818-bis, interim measures issued by an arbitral tribunal may be challenged before the courts on the same grounds available to challenge awards contrary to public order. The new ICCP, Article 818-ter deals with enforcement of arbitral interim measures, which takes place under the supervision of the courts.
In England, the Arbitration Act contains various provisions dealing with interim relief, contained in sections 38 and 39. In a nutshell, sections 38(1) and 39 allow the parties to empower the arbitrators to issue interim measures, including “any relief which [the arbitral tribunal] would have power to grant in a final award“. Under the Italian arbitration law, this can be done by incorporating references in the arbitration agreement arbitration rules which allow for interim relief.
Section 38(2)-(6) contains default provisions which apply even in the absence of an agreement of the parties on interim measures. They allow an arbitral tribunal to order security for costs and adopt various measures for the preservation of evidence.
Section 44 of the Act vests the English courts with powers exercisable in support of arbitral proceedings, some of which are of an interim nature. The courts can only exercise such powers if the applicant has obtained “the permission of the tribunal“, unless the case is of urgency, or if the arbitral tribunal “has no power or is unable for the time being to act effectively“.
The Consultation Paper does not set out any substantial reform proposal regarding such provisions. The Law Commission only suggested two minor amendments: the first one, to the heading of section 39 (to clarify that interim measures are set out in a provisional “order“, not a provisional “award“, as reflected in the body of the provision); and the second one to amend the reference to interim “relief” in section 39(1) to read “remedies“. The first proposed amendment would clarify a point which affects the regime applicable to interim measures. If interim measures were ordered in an award, as opposed to an order, they would, inter alia, be subject to the challenges provided for in sections 67-69 of the Arbitration Act.
In the recent arbitration law reform, the Italian Government has introduced certain provisions on the law applicable by the arbitrators to the merits of the dispute. The reform has introduced a new paragraph to ICCP, Article 822 which reads as follows:
“When the arbitrators are called to decide according to rules of law [and not ex aequo et bono], the parties, in the arbitration agreement or in a written document which pre-dates the institution of the arbitration proceedings, may indicate the norms or a foreign law as the law applicable to the merits of the dispute. Failing that, the arbitrators apply the norms or the law identified in accordance with the conflict criteria deemed applicable“.
The first sentence specifies that the parties can indicate as applicable law a “foreign law” or “norms“, which may include sources other than the law of a State. The second specifies that, even if the proceedings are seated in Italy, the arbitrators would not be bound to apply the Italian (or European Union) private international law rules. Arbitrators may rely on whatever conflict “criteria” they deem applicable.
Conversely, the Italian Government has omitted to regulate the matter of the law applicable to the arbitration agreement. It is difficult to identify a uniform approach to this matter. In some decisions concerning contracts with provisions on the law governing the main contract, the Italian Supreme Court has held such a law to be applicable to the arbitration agreement as well.
In England, the Arbitration Act deals with the law applicable to the merits of the dispute in the following terms:
“(1) The arbitral tribunal shall decide the dispute—
(a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or
(b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal.
(2) For this purpose the choice of the laws of a country shall be understood to refer to the substantive laws of that country and not its conflict of laws rules.
(3) If or to the extent that there is no such choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable“.
The Law Commission did not discuss reforming such provisions. Instead, it considered the issue of the law governing the arbitration agreement. Stakeholders suggested there should be a default rule whereby the law governing the arbitration agreement should be the law of the seat, which would supersede, in part, the approach taken by the English Supreme Court in Enka v Chubb.
The findings in Enka were cited by the UK Supreme Court in Kabab-Ji v Kout Food Group. However, while Kabab-Ji turned on deciding the law applicable to the arbitration agreement pursuant to section 103(2)(b) of the Arbitration Act, this section transposes the text of the New York Convention 1958 into English law and not under English common law.
The Law Commission recalled that provisions on conflict of laws were deliberately left out of the Arbitration Agreement and expressed scepticism as to whether the Act needed to introduce a new regime which departs from Enka v Chubb.
Both Italy and England, at the time of writing, are yet to codify relevant principles for determining the law applicable to the arbitration agreement in their respective arbitration legislation.
Italy’s arbitration law, in relation to appealing arbitral awards on a point of law, provides for an opt-in mechanism. The default grounds for setting aside arbitral proceedings are set out in ICCP, Article 829(1) and appear procedural in character. However, ICCP Article 829(3) provides that: “[a]ppeals for violation of the rules of law relating to the merits of the dispute are permitted if expressly provided by the parties or by law. It is, in any case, permissible to appeal the decisions which are contrary to public order“. The recent reform has left ICCP, Article 829(3) untouched.
The Arbitration Act, for its part, provides for appeals on a point of law on an opt-out basis. Section 69(1) of the Act provides that “[u]nless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings“. Thus, the mechanism is opposite to that under the Italian arbitration law. Another difference is that section 69(3) formulates in restrictive terms the grounds upon which the English court may grant permission to appeal on a point of law. Appeals under ICCP Article 829(3) require no permission to appeal and are not formulated in restrictive terms.
The Consultation Paper contains a discussion as to whether section 69 appeals should be modified. These discussions concern whether section 69 appeals should be abolished altogether or whether, they should be become more liberal.
According to the Law Commission, section 69 strikes a balance between finality and court control over the arbitrators’ application of the law. Section 69 “allows for the possibility of an appeal on a point of law“, but “it promotes the finality of arbitral awards, by allowing parties to opt-out of section 69, or otherwise restricting intervention to correcting blatant errors“. Thus, the Law Commission’s provisional conclusion is that no reform of section 69 is needed.
The fact that, in Italy appeals on a point of law are available on an opt-in basis whereas in England they are available on an opt-out basis might suggests a different balancing of the “competing needs” to ensure the finality of arbitration awards and court control of the arbitrators’ application of the law in Italy and England (with the Italian reform perhaps deciding in favour of finality of arbitration awards). In Italy, however, the permission to appeal is not required and will always be allowed if the award is counter to public order. Appeals under section 69 of the Arbitration Act require permission to appeal on one of the grounds set out in section 69(3), but, according to the Law Commission, “section 69 is invoked in a tiny minority of cases“.
The proposed reform to the Arbitration Act builds on the consolidated experience of London as one of the main hubs of international arbitration and aims at maintaining such a primacy. The Italian arbitration reform has modernised Italian arbitration law with the goal of elevating Italy to the level of other international arbitration hubs.
The Italian arbitration reform and the proposed English reform have points of convergence as well as different approaches on relevant arbitration issues. Any further assessment on both reforms may only be made after the consultation and debates on the Arbitration will evolve into a final draft and the Italian arbitration reform is put into practice with real arbitration disputes. Certainly, the efforts of the Italian reform together with the Milan Chamber of Arbitration in issuing modern and up-to-date international arbitration rules will contribute to the development of Italy as a suitable seat for international arbitration proceedings.
Thus, it is yet to be seen whether all roads of arbitration will continue to lead to London or will also start leading to Rome. However, both reforms highlight the importance that both jurisdictions place on arbitration as a crucial means to solve disputes both domestically and internationally.
This blog has been republished with the kind permission of the authors. The article was first published online on website.
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*The original post appeared on the Blog of the American Review of International Arbitration (ARIA) on 18 January 2023.
Camilla Gambarini, MCIArb, is a Senior Associate at Withers (London). She is an Italian qualified lawyer (Avvocato) and Solicitor Advocate of England and Wales and holds a Master’s Degree (LLM, Columbia Law School 2014), Master in International Law (Graduate Institute Geneva, 2011) and Laurea Magistrale in Giurisprudenza (Catholic University of Milan, 2009).
Giacomo Gasparotti is an Associate at Withers (London). He is an Italian qualified lawyer (Avvocato) and Solicitor of England and Wales, and holds a Master’s Degree (LLM, MIDS, 2020), Laurea Magistrale in Giurisprudenza (University of Padua, 2015).
The authors wish to thank their colleagues of the Withers’ Arbitration Practice of Withers Milan office, Partners Avv. Cristina Pagni and Avv. Matilde Rota for their valuable feedback on Italian law and who remain available to answer any further questions on the same.
The authors also wish to thank Abdul Sattar of Withers (London) for his feedback on this post.
> accessed 10 January 2023.
UK Government <> accessed 10 January 2023.
Arbitration Act 1996 (c 23) <> accessed 19 December 2022 (the “Arbitration Act“).
Decreto Legislativo 10 ottobre 2022, n. 149 (GU n. 243 del 17-10-2022 – Suppl. Ordinario n. 38) <> accessed 19 December 2022 (“Italian Legislative Decree No.149/2022“). Italian Legislative Decree no 149/2022 is an instrument of delegated legislation underpinned by Law No. 206 of 26 November 2021 Legge 26 novembre 2021, n. 206 (GU n.292 del 09-12-2021) <> accessed 19 December 2022 (“Italian Law no 206/2021“)). It follows and implements the principles and criteria set out in Italian Law No. 206/2021(Legge 26 novembre 2021, n. 206 (GU n.292 del 09-12-2021) <> accessed 19 December 2022 (“Italian Law no 206/2021“)).
Regio Decreto 28 ottobre 1940, n. 1443 (GU n. 253 del 28-10-1940) <> accessed 19 December 2022.
Italian Legislative Decree No. 149/2022, Art. 35(1).
See Italian Legislative Decree No. 149/2022, Art. 3(51)-(56).
Arbitration Act 1996, s. 2(1).
Law Commission, ‘Review of the Arbitration Act 1996. A Consultation Paper’ <> accessed 19 December 2022 (the “Consultation Paper“), 145.
Consultation Paper, 135-143.
ICCP, Article 815(1)-(6).
ICCP, Article 815(6-bis).
Consultation Paper, para 3.1 (defining the concepts of “independence” and “impartiality“).
Consultation Paper, 3.4-3.29 and 3.40-3.43.
Consultation Paper, 3.5 and 3.40.
Consultation Paper, 3.3.
Consultation Paper, 3.10.
Consultation Paper, 3.40.
Consultation Paper, 3.29.
See, for example, LCIA Arbitration Rules 2020, Art. 5.4 and 5.5; ICC Arbitration Rules 2021, Art. 11(2)-(3); SIAC Arbitration Rules 2016, Rule 13.4 and 13.5; ICSID Arbitration Rules 2022, Rule 19(3)(b) and 19(6).
See IBA Guidelines on Conflicts of Interest in International Arbitration (Adopted by resolution of the IBA Council on Thursday 23 October 2014) < > accessed 19 December 2022, General Standard 3.
ICCP, Article 813(1) (as amended).
Consultation Paper, 3.46.
Consultation Paper, 3.47.
Consultation Paper, 3.47 and 3.49.
Consultation Paper, 2.7-2.24.
Consultation Paper, 2.7-2.24 and 2.31.
Consultation Paper, 2.32-2.38.
Consultation Paper, 2.39-2.46.
Costituzione della Repubblica italiana (GU n. 298 del 27-12-1947) <> accessed 20 December 2022, Art. 3.
Consultation Paper, 4.1 et seq.
Jivraj v Hashwani [2011] UKSC 40, 2011 WL 2747856 at [1], [50] and [60]-[71].
Equality Act 2010 (c 15) <> accessed 19 December 2022 (the “Equality Act“), s 4.
Consultation Paper, 4.19.
Equality Act, s 4.
Consultation Paper, 4.20.
ICCP, Article 818 (before amendment).
Milan Chamber of Arbitration Rules 2020, Article 26(1)-(2).
See Antonio Briguglio et al, ‘Commento ai principî in materia di arbitrato della legge di delega n. 206 del 21 novembre 2021, art. 1, c. 15‘ (1 March 2022) Riv Arbitrato 3, 31-32.
Arbitration Act, s 44(4)-(5).
Consultation Paper, 10.43-10.49.
Consultation Paper, 10.45.
Mariacarla Giorgetti, ‘Commento alle novità in materia di arbitrato introdotte dal decreto legislativo n. 10 ottobre 2022, n. 149‘ (9 November 2022) Judicium < > accessed 30 November 2022.
See on this point the discussion contained in Antonio Briguglio et al, ‘Commento ai principî in materia di arbitrato della legge di delega n. 206 del 21 novembre 2021, art. 1, c. 15‘ (1 March 2022) Riv Arbitrato 3, 40-48.
See, for example, Massimo Benedettelli, International Arbitration in Italy (Kluwer Law International 2020), paras 3.1-3.14; Michele Grassi, ‘The proper law of arbitration agreements: drawing a divide between dépeçage and severability’ (1 March 2021) Riv Arbitrato 3, section 4.
See Cassazione civile, Sez. Un., 17 maggio 2022, n. 15713; Cassazione civile, Sez. Un., 19 settembre 2017, n. 21550; Cassazione civile sez. un., 25 ottobre 2013, n. 24153; but see, to the contrary, Cassazione civile, Sez. I, 20 gennaio 1995, n. 637.
Arbitration Act, s 46.
Consultation Paper, 11.8-11.12.
Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, [2020] 1 WLR 4117. See Consultation Paper, 11.8.
Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48 at [28]-[29].
Consultation Paper, 11.12.
Consultation Paper, 9.27 et seq.
Consultation Paper, 9.26-9.47.
Consultation Paper, 9.48-9.50.
Consultation Paper, 9.50.
Consultation Paper, 9.52.
Consultation Paper, 9.30.
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