Article 111(7) of the Italian Constitution grants parties with the right to file an extraordinary appeal with the Supreme Court on grounds of error in law against any state court final decision regarding personal freedom. The reference to personal freedom would seem to limit the scope of the remedy to criminal actions. However, already in 1948, the Supreme Court of Cassation extended the availability of the appeal to civil proceedings and, in particular, infringement of subjective rights or a status by state courts’ decisions.
It is settled case-law of the Supreme Court that a court judgement, even if issued in the form of an order (ordinanza) or ex parte decision (decreto), can be subject to an Article 111 appeal if the judgement (i) affects subjective rights or a status, and (ii) has res judicata effects (i.e. when there is no judicial remedy and the judgement is not modifiable or revocable by the court who issued it).
With regard to the state courts’ power to intervene in arbitral proceedings, the Supreme Court confirmed with two recent rulings (summarized below) its position that state courts’ decisions on both appointments and removals, despite having final character, do not fulfill the requirements of the Article 111(7) appeal.
The Italian legal framework mirrors thus the principle applicable in other civil law jurisdictions. In France, for instance, the orders of the juge d’appuì are not appealable (Article 1460 of the French Code of Civil Procedure). Similarly, under Swiss law governing international arbitrations, there is no remedy available against the arbitrator’s appointment by the state court under Article 179(3) PILA, whereas Article 180(3) PILA explicitly provides that the state court decides “in a final manner” on challenges of arbitrators. Vice versa, common law jurisdictions generally provide for a remedy against state court decisions regarding appointments and challenges (e.g., Sections 17(4) and 24(6) of the English Arbitration Act).
- Appointment of arbitrators (Supreme Court decision No. 9767/2018, dated 19 April 2018)
In this case, the president of an Sicilian state court, declared inadmissible a party’s application for the appointment of two arbitrators at the discretion of the court[1]. The applicant appealed the President’s order arguing that the decision prevented the establishment of the arbitral tribunal and thus radically deprived the parties of the right to obtain recognition and protection of their subjective legal positions arising from the arbitration agreement.
The Supreme Court rejected the appeal, ruling that a state court’s order regarding the appointment of an arbitral tribunal’s member is issued due to a disagreement of the parties with regard to the mere appointment of arbitrators. With its order, the state court does not resolve a dispute between two or more parties in the sense of establishing a controversial right or attributing a disputed good. The state court’s intervention simply replaces the missing outcome of the parties’ negotiation on the arbitral tribunal’s composition and remains completely alien to the actual dispute. The state court’s order can thus not be regarded as decision under Article 111(7) of the Italian Constitution[2].
As concerns the finality of the order, the Supreme Court clarified that, in case the state court appoints a member of the arbitral tribunal, the latter can subsequently assess the legitimacy of its appointment. Otherwise, in case the state court rejects the application, the potential prejudice to the parties must be attributed to the unsuccessful negotiations on the appointment between the parties and not to the state court’s intervention.
In the decision No. 18004/2018, dated 9 July 2018, the Supreme Court extended the above principle to state courts’ orders regarding the replacement of arbitrators. The Court held that state court decisions on the appointment and replacement are not appealable under Article 111(7) of the Italian Constitution because they do not produce any substantial or procedural effects of a res judicata decision.
- Removal of arbitrators (Supreme Court decision No. 20615/2017, dated 31 August 2017[3])
This cases stems from an arbitration in which the President of the Court of Milan – competent to decide on challenges of arbitrators in this specific case under Article 815(3)[4] of the Code of Civil Procedure – removed an arbitrator for “serious divergence of opinions” with a party. The removed arbitrator lodged an Article 111(7) appeal with the Supreme Court.
The Supreme Court held, first of all, that Article 815(3) of the Code of Civil Procedure expressly declares a state court’s order on the removal of an arbitrator not subject to appeal and thus final. Moreover, the Court ruled that the removal of an arbitrator cannot be appealed under Article 111 of the Constitution since the state court’s order is of an essentially administrative nature and constitutes a merely functional and instrumental measure regarding the conduct of the procedure itself. The removal order does not affect the arbitral tribunal as such or the criteria for its establishment, nor does it jeopardize the right of the party to the appointment of its own arbitrator. The right to challenge an arbitrator rather protects the correct composition of the arbitral tribunal and the general interest in its impartiality and impartiality[5].
[1] According to Article 810(2) Code of Civil Procedure, if the respondent does not appoint its arbitrator, the claimant may, by way of appeal, “request that the appointment be made by the President of the court in whose jurisdiction the seat of arbitration is situated. If the parties have not yet determined the place of arbitration, the application shall be submitted to the President of the court of the place where the arbitration agreement was entered into or, if that place is abroad, to the President of the court of Rome“.
[2] Similar conclusions were drawn by the Supreme Court, inter alia, in the decisions No. 11665/2007 and 3129/2002.
[3] Similar conclusions were drawn by the Supreme Court, inter alia, in the decisions No. 10359/2012 and 8472/2002.
[4] Article 815(3) Code of Civil Procedure: “A challenge shall be lodged by means of an appeal to the President of the Court [in whose district the arbitration is seated] within ten days from notification of the appointment or the knowledge of the grounds for challenge. The President shall issue an order not subject to appeal, after having heard the challenged arbitrator and the parties and, if necessary, having considered summary information“.
[5] This principle has also been reflected in the above commented decision No. 9767/2018.
