Definition
International arbitration institute, known as international commercial arbitration, is the most widely used out-of-court instrument in the world for the settlement of international trade disputes between parties of different nationalities.
The international element may depend on several factors, such as the influence of international commercial interests, or a cross-border character of the services covered, or an agreed of the parties have to apply to an international arbitration body for the settlement of the dispute.
The arbitration procedure is faster than ordinary court proceedings and it is characterized by the efficiency and confidentiality of the proceedings on the one hand and, on the other, the stability of the decision.
Sources
- The will of the Parties expressed in the Arbitration Agreement or Arbitration Convention
- The 1958 New York Convention
- The arbitration regulations adopted by the various international arbitration bodies, including the ICC of Paris of 1919 and the American Arbitration Association of New York on the recognition and enforcement of foreign arbitration awards
- National laws recognising arbitration such as English, French and Swiss.
Procedure
The Parties, belonging to two or more different States, may make provision in their trade relations for an arbitration agreement as an alternative to the judicial instrument which may take the form of a clause, known as an arbitration clause, or be provided for in a separate document (ancillary contract) which has been compromised.
In the arbitration clause or compromise, the Parties shall establish:
- timing and procedure of arbitration proceedings
- the composition of the Arbitration Committee (and the choice of professionals identified on the basis of the technical expertise considered most appropriate, for the resolution of specific disputes).
According to the Doctrine of Separability, the validity of the arbitration clause contained in a contract does not depend on the validity of the main contract and vice versa, and the effectiveness of the arbitration agreement is protected, regardless of the validity of the contract in which it is contained. A consequence of this autonomy is that the arbitration agreement may be governed by a law other than that applicable to the main contract to which it relates. To this end, the choice of the place of arbitration is essential, since the law of that place is applicable in order to determine the validity of the arbitration agreement in the absence of a different parties choice.
The requesting Party shall submit a request for arbitration (“RFA”) after a trading period, followed by the formation of the deciding body in which the parties agree on the number of arbitrators (single arbitrator or panel of three arbitrators) and the method of appointment. The body constituted will establish a procedural timetable for arbitration, including a timetable for the exchange of written pleadings and provisional dates for a hearing. At the same time, an independent damages assessor will be appointed to calculate the losses of the claimant, both prior and expected, and an independent legal expert from the defendant’s country.
At the end of the procedure will be issued a measure called arbitration award that, like the judgments of the ordinary courts, can decide definitively all (final award) or only some (partial award) the dispute between the parties or may consist of non-final decisions (interim award). Two other types of arbitration awards are the so-called default awards and additional awards. The first is the decision given at the end of proceedings in absentia of one of the parties, while the second allows the arbitrators to decide matters not defined in the course of the arbitration, such an award shall be final and subject to the enforcement regime provided for in the New York Convention.
Recognition of the arbitration award in Italy
In the Italian legal system, there is no automatic recognition of the arbitration award issued abroad, unlike in the case of judgments and decisions handed down by the courts of the EU Member States.
In order to have legal effects in Italy, as an out-of-court and private instrument, although internationally recognised, the arbitration award must be recognised by the court and declared enforceable by decree to be served on the other party, by application to the President of the Court of Appeal of the place where the party against whom the award is sought, accompanied by all necessary documents in Italian, in accordance with the procedure laid down in Articles 839 and 840 of the Civil Code.
International arbitration in Italy
In Italy, the Florence International Media Chamber is as a section of the Chamber of Commerce of Florence and The International Business Media Service, which is a section of the Chamber of arbitration of Milan to integrate this new requirement, to try to resolve disputes in a place other than the ordinary court.
The data show that its diffusion is reduced due to the lack of knowledge of the institute, not only among the general public but also by the entrepreneurial class and the professionals themselves. Moreover, there is the widespread perception of arbitration as an expensive tool, suitable only for litigation of high economic value.
On the contrary, this instrument resolves a dispute through efficient management, which is not necessarily costly, if a cost forecast is made in an appropriate manner, and certainly faster than civil-commercial litigation.