Originally published October 2001
What should a party do when, having signed a free arbitration clause and perhaps even having commenced such proceedings, it finds it necessary to have recourse to the interim protection provisions of Article 669 et seq of the Italian Civil Code in order to, for example, prevent the other party from adopting a course of conduct which is contrary to a clause in the contract?
For the purposes of this update, a 'free arbitration' clause is a clause whereby the parties have decided, at the time of signing the contract, to prevent any decision that is given during arbitration proceedings from having the force of a judgment obtained pursuant to the provisions of Article 825 of the Code of Civil Procedure.
The opportunity to have recourse to interim judicial protection where there is an arbitration clause in existence or arbitration proceedings pending is recognized in the provisions that apply to normal arbitration clauses (Article 669(5), (8) and (9) of the Code of Civil Procedure). These provisions allow for decisions made at the end of an arbitration proceeding to have the same force as a judgment, thus rendering any interim protection measures final (or finally dismissed).
Excluding, then, the applicability of these provisions to free arbitration, and considering that the power to exercise interim protection measures is vested in the state alone, the jurisprudence on this issue appears to take two approaches.
Some courts have denied the availability of interim protection measures in free arbitration proceedings on the basis of lack of jurisdiction, which the parties themselves surrendered by signing the free arbitration clause (Court of Naples, August 7 1997; Court of Verona, August 20 1996).
Others instead rely on the recent opinions of legal commentators and acknowledge the availability of interim protection - assuming there is a prima facie case and there is imminent danger to the goods involved - on the basis that contracting parties may not irrevocably surrender the right to judicial protection, and in particular interim precautionary measures (Court of Rome, July 24 1997; Court of Turin, October 31 1996).
An application for interim protection from a party who has signed a free arbitration clause will nonetheless have important effects as it is effectively a request for a judgment on the merits, which would then have to be pursued in accordance with Article 669(8) of the Code of Civil Procedure, with the result that it will no longer be possible to proceed with the free arbitration. The parties will have to pursue the case on its merits before a competent judge within the timeframe specified by law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.