On 12 September 2011, the International Chamber of Commerce (ICC) has launched a revised version of its Rules of Arbitration with the aim of better serving the existing and future needs of businesses and governments engaged in international commerce and investment.
The new ICC Arbitration Rules (the “Rules”) will come into force on 1 January 2012 and take into account current requirements and developments in arbitration practice and procedure, as well as developments in information technology, since they were last revised in 1998.
The revision process began in 2008 and was undertaken by a small drafting committee of up to 20 members, supported by a wider task force of 202 members and a consultation process with ICC national committees around the world and the ICC Commission on Arbitration. The new Rules were approved in Mexico City by the ICC World Council on 11 June 2011.
Additions to the Rules include provisions to address disputes involving:
Other amendments have also been made to ensure that the arbitral process is conducted in an expeditious and cost-effective manner.
Unless parties stipulate otherwise, the new ICC Arbitration Rules will automatically apply to all arbitrations under the auspices of the International Chamber of Commerce commenced after 1 January 2012, save for the emergency arbitrator provisions.
In answer to the growing demand for a more holistic approach to dispute resolution techniques, the new Rules are published in a booklet that also includes the ICC ADR Rules, which provide for mediation and other forms of amicable dispute resolution. Both sets of Rules define a structured, institutional framework intended to ensure transparency, efficiency and fairness in the dispute resolution process while allowing parties to exercise their choice over many aspects of procedure.
By Legislative Decree No. 28 dated 4 March 2010 (the “Decree”), the European Mediation Directive 2008/52/EC (the Directive) has been implemented in Italy. The Directive is part of a European-wide initiative to promote and regulate the development of mediation throughout the EU. The Directive itself should apply only to mediation in cross-border disputes, but nothing should prevent Member States from applying such provisions also to internal mediation processes.
The mediation procedures introduced by the Decree, which covers both cross-border and domestic disputes, only apply to claims/rights which can be freely disposed of by the relevant parties (“Diritti Disponibili”) as opposed to rights which cannot be freely disposed of by the relevant individuals (e.g.: Italian family law).
The Decree has introduced two kinds of mediation procedure:
The mandatory mediation procedure is effective as of 20 March 2011 except for any possible litigation in relation to joint ownership and compensation for damages due to car/nautical accidents which will be effective as of 20 March 2012.
The procedure is mandatory in the sense that from such date all plaintiffs prior to bringing legal proceedings shall have to try to settle disputes falling within this “mandatory” category by mediation. Legal advisers to the relevant parties shall also have a duty to inform their clients about mediation and are under obligation to try to resolve disputes by way of mediation.
The mediation procedures established under the Decree may be brought before any of the mediation organisations mentioned in Article 16 of the Decree and the applicable procedure shall follow the rules applied by the body chosen by the parties.
However, where there are alternative mediation procedures available, the plaintiffs will have the option to use either the procedure as set out in the Decree or the alternatives. Two alternative mediation procedures are currently in force in Italy, which can be used instead of the mediation procedure under the Decree in relation to certain banking and financial disputes (see Legislative Decree No. 179 dated 8 October 2007 and art. 128 bis of the Italian Banking Law).
The European Court of Justice, in its Judgment in joined cases C-317/08, C-318/08, C-319/08, and C-320/08 for a preliminary ruling issued on 18 March 2010, held that EU directives and general principles do not preclude national legislation which imposes prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.