Interim Measures Under Italian Arbitration Law

29.09.2013 - Article 818 of the Italian Civil Procedural Code provides that the arbitral tribunal cannot grant "[...] seizure orders and any other precautionary measures [...]". This provision still comes from the old dis-favor of the Italian legislator for the arbitration compared with the State Court proceedings and accordingly the party will have recourse to Courts for any requests of interim measures during the arbitration proceedings.

The matter is highly debated in Italy for several reasons.

In general terms there are precautionary measures which may affect third parties and that therefore could be of prejudice for the third party who is not a party in the arbitration. There are however also precautionary measures which are directed only to one of the parties of the arbitration and there would be no reason to prohibit the granting of precautionary measures against them.

An additional distinction has then to be made in respect of precautionary measures which requires for their own nature an enforcement or in any event a judicial modification of the status quo.

The arbitrators can be considered as entitled to grant all the precautionary measures addressed to one of the parties who can be voluntarily complied with or those measures which do not imply in themselves any judicial modification of the status quo. The failure to comply voluntarily with measures adopted by the arbitrators can be certainly sanctioned with monetary fines. Such an approach is exactly the one adopted for instance by Italian National and International...