The following Arbitration practice note produced in partnership with Filippo Frigerio and Micael Montinari of Portolano Cavallo provides comprehensive and up to date legal information covering:
For arbitration proceedings seated in Italy, arbitral tribunals cannot issue interim remedies (either provisional or conservative measures) unless as provided by Italian law (section 818 of the Italian Civil Procedural Code (CPC)). There is only one provision under Italian law relating to the arbitration of certain company disputes that empowers arbitrators to issue interim measures.
A company’s articles of association may authorise shareholders to determine, by way of arbitration, the validity of the company’s resolutions.
Where arbitration proceedings are started for such a purpose, paragraph 5 of article 35 of the Legislative Decree no 5, 17 January 2003 (D.Lgs. 5/2003) empowers an arbitral tribunal to suspend provisionally the enforceability of the company’s resolutions while their validity is challenged. Such orders cannot be challenged.
Commentators and courts exclude an analogical interpretation of this provision in order to extend its scope. As a result, tribunals are not empowered to issue any interim relief aside from suspending the enforceability of a company’s resolutions.
Pursuant to the same article, until an arbitration tribunal is established, the court which would be competent to determine the controversy absent an arbitration clause, retains the interim general power to suspend the enforceability of the company’s resolutions.
On the basis that arbitration tribunals are not given the power to issue interim remedies, they
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