Professors Franco Ferrari, the Center’s Director, Friedrich Rosenfeld (Global Adjunct Professor of Law at NYU Paris and Partner at Hanefeld, Paris/Hamburg), and Caroline Kleiner (Professor of Law at Universite’ Paris Cite’) have just published the book titled Arbitrage Commercial International. Une approche comparative. The book, which is based on the English version authored by Professors Ferrari and Rosenfeld, with Professor John Fellas (Adjunct Professor at NYU School of Law) acting as Consultant Editor, has benefitted greatly from Professor Kleiner’s knowledge of French arbitration law and how it differs from the arbitration law of other jurisdictions. Like the original English version, the French version is divided into 12 chapters, namely Introduction to International Commercial Arbitration, the Recognition of Arbitration Agreements and Relevant Exceptions, the Principle of Competence, Initiation of Arbitral Proceedings and Constitution of the Arbitral Tribunal, Procedure, Evidence, Complex Arbitrations Involving Multiple Tiers, Contracts and Parties, the Award, the Set-Aside of Awards, the New York Convention: Introduction, Scope of Application, Formal Requirements and Procedure, the New York Convention: the Duty to Recognize and Enforce Arbitral Awards, and the Relevance of the Post-Award Phase in the Pre-Award Phase.

The Preface was penned by Hon. Fabienne Schaller, President of the International Commercial Chamber of the Paris Court of Appeal.

The Center is glad to be able to announce that on Monday, October 2^nd, 2023, it will host a conference titled “The Impact of Sanctions, Selected Issues” in collaboration with the Law Department of Bergamo University.

The event, which will be moderated by Professors Maria Caterina Baruffi, a professor at Bergamo University, and Ruggiero Cafari Panico from the University of Milan, will be opened by Professor Caroline Kleiner, a professor at the University Paris Descartes, who will give the keynote address entitled “Deference in international arbitration and economic sanctions”. The other speakers include Professor Marco Torsello, a professor at Verona University and Global Professor at NYU’s Paris site, Dr. Jacques Moscianese, an Expert Associé at the ESSEC Business School Paris, and a future scholar-in-residence at the Center, as well as Dr. Fabrizio di Benedetto. Professor Franco Ferrari, the Center’s Director, will give the closing remarks.

For more information, please click here.

Professor Franco Ferrari, the Center’s Director, has just published a paper titled “International Commercial Arbitration is also National” in a multi-language volume edited by Gilberto Giusti, Eliana Baraldi, Eduardo Vieira de Almeida, and Gustavo Favero Vaughn, and coordinated by Paula Akemi Taba Vaz, titled “Arbitragem e Poder Judiciário.”

The 65 papers contained in the volume, which cover all aspects of the arbitration process, are divided into various chapters, addressing the duty to disclose, confidentiality, conflicts of jurisdictions, extension of the arbitration agreement to non-signatories, the principle of iura novit curia and its impact on arbitration, the role of judicial precedents, interim measures, judicial cooperation, the role of estoppel, guerilla tactics, the post-award phase, enforcement of awards, constitutional control over arbitration, arbitration and corporate law, consumer law and arbitration, tax law issues, competition law issues, bankruptcy and arbitration, legal fees in arbitration, etc.

In regard to the paper by Professor Ferrari, it shows that the seat of arbitration is important at all stages of an arbitration’s life-span. At the pre-award stage, the seat triggers the application of the arbitration regime in many States in which the arbitration regime is based on the territorial approach. The seat also determines where the arbitral award “was made”, which is essential for the post-award stage (both for set-aside and recognition and enforcement proceedings). From this it follows that, in international arbitration, choosing the seat is of paramount importance. Foregoing the choice of the seat means giving up an arbitration planning tool, for which there is no appropriate remedy. In effect, where the seat constitutes the connecting factor making applicable a given arbitration regime, as it does under most arbitration regimes, it does so irrespective of the parties’ choice, that is, irrespective of who ultimately will identify the seat. The parties’ failure to choose a seat directly will render applicable the default rules for identifying the seat, thus leaving one of the most pivotal decisions to a third-party, however this third-party will be identified.

Professor Franco Ferrari, the Center’s Director, has just published a paper on the importance of the law of the seat in international commercial arbitration in a volume entitled “Applicable Law Issues in International Arbitration / Questions de droit applicable dans l’arbitrage international”, co-edited by Diego P. Fernández Arroyo (Sciences Po) and Giuditta Cordero-Moss (Oslo University), and published by Brill under the auspices of The Hague Academy of International Law. The volume, which is part of the Centre for Studies and Research in International Law and International Relations Series, explores the importance of identifying the law applicable to many arbitration related issues, also including the merits of the dispute, the limits to party autonomy, the effects of overriding mandatory rules, the interpretation of international treaties by arbitrators, the principle iura novit arbiter, manifest express of powers in  ICSID arbitration, the arbitrability, res iudicata, the liability of arbitrators, and the importance of domestic law.
 
The contributors, who come from Argentina, Bburkina Faso, Cameroon, Colombia, France, Italy, Morocco, Norway, Portugal, Sweden, and Turkey, are, apart from Professor Ferrari, Didier Bationo, Marco Buzzoni, Federico Alberto Cabona, Ludovica Chiussi Curzi, Ana Coimbra Trigo, Lito Dokopoulou, Dr. Yagmur Hortoglu, Ali Kairouani, Andrea Mackielo, Paola Patarroyo, Luca G. Radicati di Brozolo, Alexandre Senegačnik, Erik Sinander Nicola Strain, Giulia Vallar, Wendinkonté Sylvie Zongo, and Apollin Koagne Zoupet.

For more information, please click here: https://brill.com/edcollbook/title/68987?rskey=11m0FB&result=27

Kluwer Law International has just published a book co-edited by Professor Franco Ferrari, the Director of the Center for Transnational Litigation, Arbitration, and Commercial Law, and Professor Friedrich Rosenfeld, Global Adjunct Professor at NYU Paris and Partner at Hanefeld, Hamburg/Paris, entitled “Deference in International Commercial Arbitration”. The book offers a comprehensive and structured analysis of deference in international arbitration. In international arbitration, deference implies that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor.

Drawing on abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise: public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution); public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution).

The book contains 14 chapters, including the introductory chapter, which was co-authored by Professors Ferrari and Rosenfeld, addressing the role of deference in international arbitration (by Esmé Shirlow), the forms and justifications of deference in international arbitration (by Stavros Brekoulakis & Mihaela Apostol), anticipatory deference (by George A. Bermann), deference from national courts to tribunals on issues of jurisdiction at the post-award stage (by Dennis Solomon), deference from national courts to tribunals on issues of public policy at the post-award stage (by Giuditta Cordero-Moss), deference from national courts to tribunals on issues of procedure (by Luke Nottage), judicial deference to decisions of arbitral institutions (by Rémy Gerbay & Alexander Afnán), judicial deference to decisions of arbitral institutions (by Ritika Bansal), deference and provisional measures (by Alberto Malatesta), judicial deference to arbitral tribunals under section 1782 (by Linda H. Martin & Kate Apostolova), deference from foreign enforcement courts to decisions of the courts of the seat annulling an arbitral award (by Emilio Bettoni), deference from foreign enforcement courts to decisions of the courts of the seat confirming an arbitral award (by Weixia Gu), and tribunal-to-tribunal deference in unrelated cases (by Joongi Kim).

For more information, follow this link.

On April 28, 2023, the NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law will host an in-person conference dedicated to “Deference in International Arbitration”,  The speakers will be, in alphabetical order, Professor George Bermann (Columbia Law School), Rémy Gerbay (Partner at Hughes Hubbard & Reed),Dr. Friedrich Rosenfeld (Partner at Hanefeld, Hamburg & Paris, and Global Adjunct Professor at NYU Paris), Professor Dennis Solomon (University of Passau, Germany), and Paige von Mehren (Senior Associate at Freshfields). The event will be moderated by Professor Franco Ferrari, the Center’s Director.

The starting point of the conference is the realization that the responsibility to control awards is shared among multiple actors of private and public origin. They include arbitral tribunals, arbitral institutions, courts at the seat as well as recognition and enforcement courts. This generally leads to a situation where one and the same issue is assessed multiple times. This, in turn, leads to the question of whether any of these aforementioned decision makers should pay deference to previous determinations by a different decision maker. And it is this question that the speakers will answer on the basis of papers submitted for publication in a book entitled “Deference in International Commercial Arbitration. The Shared System of Control in International

Commercial Arbitration”, co-edited by Professor Franco Ferrari and Dr. Friedrich Rosenfeld, to be published shortly by Kluwer Law International.

For more information, please see the attached flyer.

Please note that even though there is no charge to attend the event, registration is required. To register, please click here.

The Center is glad to be able to announce that on April 27, 2023, from 9.00 am -6.00 pm, it will host a research seminar focusing on papers authored by graduate students enrolled in NYU School of Law’s IBRLA LL.M. program. The seminar will allow the participating graduate students to present the ideas behind their research paper and discuss them with professors visiting the Center for Transnational Litigation, Arbitration, and Commercial Law as well as leading practitioners.

As one may gather from the attached flyer, the topics to be addressed range from the admissibility of illegally obtained evidence, the arbitrability of corporate disputes, the criteria to qualify a jurisdiction as an arbitration-friendly one, Article VI New York Convention, deference, ESG and arbitration, mandatory institutional rules, arbitration in the metaverse, the factors to consider when qualifying an jurisdiction as a  Model Law jurisdiction, the unintended consequences of transparency in arbitration, to the ethnocentric interpretation of the CISG, the relationship between the CISG and Shari’a, and the impact of domestic law on FIDIC contracts.

For more information, please see the attached flyer.

Registration Required.

The Center is glad to be able to announce that later this week, it will host an in-person even focusing on the United Nations Convention on Contracts for the International Sale of Goods – CISG. The event, titled “CISG: 40 (+3) Years and Still Going Strong?” and co-hosted by Bucerius Law School, McGill Faculty of Law, and Vienna University Faculty of Law, will take place in Vienna, on Friday, March 31, 2023, starting at 11.00 am.

The various talks will address CISG-related issues, which are still controversial, including the CISG’s interpretation, the CISG’s gap-filling mechanism, economic hardship under the CISG, its applicability in international commercial arbitration, and the applicability of the principle „iura novit arbiter“ in CISG related matters.

Apart from the Center’s Director, Professor Franco Ferrari, the speakers and moderators will include Prof. Dr. Dr. h.c. Yeşim M. Atamer (University of Zurich), VieAssoc. Prof. Gary F. Bell (National University of Singapore), Prof. Andrea Bjorklund (McGill University), Dr. Luca Castellani (UNCITRAL Secretariat), Prof. José Angelo Estrella-Faria (UNCITRAL Secretariat), Prof. Clayton P. Gillette (New York University), Prof. Dr. Stefan Kröll (Bucerius Law School, Hamburg); Dr. Soterios Loizou (King‘s College London, London), Prof. Dr. Dr. h.c. Paul Oberhammer (University of Vienna); (Prof. Dr. Geneviève Saumier (Mc Gill University, Montreal), Prof. Dr. Nina Tepeš (University of Zagreb, Faculty of Law),Prof. Marco Torsello (Verona University).

For more information, see the flyer.

NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law is hosting a conference in honor of Professor Linda Silberman.  The first woman law professor to receive tenure at NYU, Linda retired from NYU School of Law last year after contributing for more than 50 years through her research, her teaching, and her charisma to shaping NYU School of Law into what it is today.

The conference will take place in person on April 20 & 21, 2023 at NYU. The conference is divided into seven parts, dedicated specifically to Jurisdiction, Choice of Law, Recognition & Enforcement of Judgments, Comparative Law, Transnational Civil Litigation, International Arbitration, and Personal Reflections (reserved for personal remarks by friends and colleagues of Linda Silberman). 

The Center is glad to be able to announce that the following colleagues will participate in the two-day event in person: José Enrique Alvarez (NYU), Jodi Balsam (Brooklyn), John Bellinger (Arnold & Porter), Pamela Bookman (Fordham), Gary Born (WilmerHale), Hannah Buxbaum (Indiana University), Trey Childress (Pepperdine), Jack Coe (Ppperdine), Lord Lawrence Collins (Essex Court Chasmbers), Giuditta Cordero-Moss (Oslo University), Kevin E. Davis (NYU), Bill Dodge (UC Davis), Robin Effron (Brooklyn), Maggie Gardner (Cornell), Paul Herrup (Office of Foreign Litigation), Harold Hongju Koh (Yale), Alexander Layton (Twenty Essex), Eva Lein (Lausanne), Pedro J. Martinez-Fraga (Bryan Cave Leighton Paisner, NYU), Dean Troy McKenzie (NYU), Arthur Miller (NYU), Yuko Nishitani (Kyoto), Marta Pertegás Sender (Maastricht), Aaron Simowitz (Willamette), Allan Stein (Rutgers), Symeon Symeonides (Willamette), Louise Ellen Teitz (RWU), Peter Trooboff (Covington & Burling LLP, Washington), Tobias B. Wolff (Penn), and Katrina Wyman (NYU).  Justice Sotomayor will participate by Zoom.

The Center thanks Professor Katrina Wyman for the continuous and unwavering support in putting this conference together. Without her help this conference would not be taking place.

Please see here for the schedule of events.

Also, please note that although there is no charge to participate in the event, you will need to register to gain access to NYU.

Introduction

The purpose of this paper is to assess whether the reformed Article 822 of the Italian Code of Civil Procedure (“CCP”) is consistent with the reform’s goal of making Italy a more attractive arbitral seat. The paper focuses only on the possibility for the parties to choose the law applicable to the merits of their dispute, codified in the new Article 822 CCP. It does not analyze the part of Article 822(2) CCP concerning the determination of the law applicable to the merit absent valid choice by the parties. 

1. The parties’ freedom to choose the law applicable to the merits before the recent amendments:

Party autonomy in arbitration is not limited to the power to submit the dispute to arbitration and to appoint arbitrators. It normally includes the freedom for the parties to choose the substantive law that applies to the merits of their dispute[1]. Indeed, most arbitration laws[2] expressly contain an “arbitration-specific conflict rule”[3] that establishes the connecting criteria by which arbitrators shall designate the law applicable to the merits and, therefore, prevent recourse to general conflict rules in arbitration[4]. These provisions recognize the importance of party autonomy as the main connecting criterion by which the law applicable to the merits is designated and require arbitrators to apply the law chosen by the parties[5], even when the law chosen is not that of a country connected with the dispute[6]. Additionally, many of these provisions use the expression “rules of law”[7],  and thus, do not limit the parties’ choice to “a law”, understood as an exhaustive national corpus of law[8]. The former includes not only national laws, but also non-State rules[9], which may be chosen by the parties as substantive rules to govern the merits of their dispute. Therefore, the use of the expression “rules of law” is intended to broaden the range of substantive rules to which the parties can subject their relationship[10]. In arbitration, the choice of “rules of law” has the same value as the designation of a “law” (i.e., a national body of law), since these rules occupy the same place as state law in the hierarchy of sources applicable to the merits[11]. Arbitration in Italy is primarily regulated by Articles 806-840 CCP, but none of these provisions expressly recognize the power of the parties to choose the substantive law applicable to the merits[12]. Italy, after the Legislative Decree nº 209/2006,[13] and until the recent amendments come into effect, lacks an arbitration-specific choice of law rule found in most jurisdictions[14]. In fact, in 2006[15] the legislature profoundly reformed the previous rules on arbitration by eliminating the whole of Chapter IV, Title VII of Book IV of the Italian CCP (the “2006 Reforms”) and, thus, altered the very concept of international arbitration[16]. The reform led to a “monistic” system in which the rules of domestic arbitration are applied to international arbitration, with few exceptions[17]. Consequently, the legislature also eliminated the previous arbitration-specific conflict rule contained in Article 834 CCP providing: “[t]he parties shall have the power to determine by agreement the rules to be applied by the arbitrators to the merits of the dispute or to provide that the arbitrators shall rule according to equity. If the parties do not so provide, the law with which the relationship is most closely connected shall apply. In either case, the arbitrators shall take into account the indications of the contract and the usages of the trade”[18].

Under the 2006 Reforms, and considering the absence of a specific arbitration-specific choice of law rule, all arbitrations seated in Italy became rooted in Article 822 CCP, which merely states that “arbitrators judge according to the norms of law unless the parties have authorized them by any expression to judge according to equity”[19].

The Italian legislature’s failure in 2006 to introduce an arbitration-specific choice of law rule to determine the applicable substantive regime has raised the question of which conflict rule is applicable to establish the substantive law on the merits, specifically in ad hoc arbitrations seated in Italy[20]. In fact, only for the latter type of arbitration, the “general” rules of private international law apply, including the provisions of the Rome I Regulation, where applicable[21]. However, while the Rome I Regulation[22] grants the parties the right to choose the applicable law, it does not allow the choice of “a law” other than that of a State[23]. Consequently, only a choice in favor of the law of a State leads to that law prevailing over otherwise applicable mandatory rules[24]. When, on the other hand, the parties choose to subject their contractual relationship to a soft law regime[25], such a choice solely determines the content of the contract per relationem[26]. This means that the provisions contained in the chosen soft law instrument do not override the mandatory rules of the otherwise applicable law[27]. Conversely, in cases where the arbitration is subject to institutional rules (i.e., the UNCITRAL Arbitration Rules), arbitrators will have to resort to the specific conflict rules contained in the UNCITRAL Arbitration Rules and not to the EU regulations on private international law, which are not of mandatory application in arbitration and are relevant only as default private international law rules[28]. These UNCITRAL Arbitration Rules contain an arbitration-specific conflict rule[29] allowing the parties to choose “rules of law” as those applicable to the merits.

The absence of an arbitration-specific conflict rule in Italy is therefore specifically relevant in the matter of ad hoc arbitrations seated in Italy. For this type of arbitration, the question which remains is whether arbitrators can disregard the parties’ choice of non-state law by invoking the limits imposed on private autonomy by the Rome I Regulation as the default instrument of private international law[30].

To overcome this dilemma, and while simultaneously promoting the goals of legal certainty and predictability in arbitration, it was necessary to reintroduce an arbitration-specific conflict rule in Italy[31].

1. The Italian arbitration amendment project in the Enabling Act:

In November 2021, the Parliament enacted the Enabling Act of Nov. 26, 2021 nº 206 (the “Enabling Act”)[32] to reform Italian civil procedural law with the aim of promoting “the efficiency of civil procedure[33]” in accordance with “objectives of simplification, expeditiousness, and rationalization” [34]. The Enabling Act, presented as part of the Italian “National Recovery and Resilience Plan,”[35] also authorizes the Italian Government to issue one or more legislative decrees to amend arbitral legislation in compliance with eight (8) specific guiding principles and criteria[36]. 

As stated in the Report[37] accompanying the proposals presented by the “Luiso Committee”[38] (incorporated into the Enabling Act), the objective of these amendments on arbitration is to “general[ly] enhance[] […] the institution of arbitration” as well as to “strengthen[] […] its specific prerogatives” in order to, “reinforce the confidence in the institution among potential users”[39]. In particular, “it is intended to conform arbitration in Italy to that provided in European rules”[40]. These statements demonstrate that the ratio behind the reform is to improve arbitration in Italy also in light of foreign legal systems considered more advanced in this field,[41] with the ultimate aim of “making arbitration more attractive […] to individuals and foreign investors”[42].

Next, Section d of Article 1(15)[43] introduces the express possibility for a party to choose the law applicable to the merits of the dispute. Specifically, the guiding principle requires the legislature to “provide, in the case of adjudication according to law, the power for the parties to indicate and choose the applicablelaw”[44].  As rightly pointed out in commentary[45], the formula used by the legislature in Section d is ambiguous and incomplete in some respects. First, from a terminological point of view, the simultaneous use of the verbs “indicate” and “choose” is ambiguous. On one hand the term “indicate” can refer to situations where only one option is possible, in contrast with the term “choose” which presupposes the existence of two or more options[46]. Second, the formula generates uncertainty because it does not clarify whether the reference to “applicable law” refers only to “a (State) law” or also includes the possibility for parties to choose non-State “rules of law”. Finally, the formulation is silent on the test which arbitrators should apply to identify the applicable law in absence of a valid choice by the parties[47]. As detailed in the following section, some of these gaps and uncertainties have been resolved by the recent Legislative Decree nº 149/2022. However, the final formulation of Article 822 CCP, which filled the gaps in Section d[48], has also generated its own perplexities.

1. Critical remarks on Article 822 CCP after the enactment of Legislative Decree of Oct. 10, 2022 nº149

On October 10, 2022, the Italian Government implemented Enabling Act nº 206/2021 with the enactment of Legislative Decree No. 149/2022[49]. Article 3(53) of Legislative Decree nº 149/2022 finally reintroduces an arbitration-specific choice of law rule with the addition Article 822(2) CCP, which will become effective on June 30, 2023. The new provision[50] states that:[51]

 “[w]hen the arbitrators are called upon to decide according to the rule of law [(i.e., as opposed to equity)], the parties in the arbitration agreement or by virtue of a written instrument preceding the initiation of the arbitration proceedings may indicate the provisions or a foreign law as a law applicable to the merit of the dispute. Failing this, arbitrators shall apply the provisions or laws identified under the conflict criteria deemed applicable”.

This provision introduces an arbitration-specific choice of law rule in Italy that recognizes party autonomy as the main connecting criterion. However, this new rule is inconsistent with modern approaches to the law applicable to the merits (A) and does not it eliminate all uncertainties when determining the applicable law (B).

1. The inconsistency of the new provision with modern approaches to the law applicable to the merit

In this respect, the provision has two problematic aspects. Firstly, the opening sentence of the new provision states that parties may chose the applicable law only “in the arbitration agreement or by virtue of a written instrument preceding the initiation of the arbitration proceedings”[52]. The legislature, in the Explanatory Report to Legislative Decree 149/2022[53], made it clear that this temporal limitation of party autonomy “responds to the logic of identifying in advance […] the applicable law” in order to “allow the arbitrators to consider whether or not to accept the appointment” and thus, avoid “[the] unnecessary waste of procedural activity”[54]. However, this limit on party autonomy is not in line with modern approaches to the parties’ choice of law applicable to the merits. Virtually no other States’ arbitration-specific choice of law rules have a temporal limitation[55]. It is therefore evident that such restriction is inconsistent with the goal of the reform, that is, to shape Italian arbitral legislation in light of foreign legal systems[56].

Secondly, the first sentence of the new provision also provides that the parties may only designate “provisions or a foreign law” as the law applicable to the merits[57]. Through this provision, the legislature eliminated the possibility for parties to choose Italian law as the law applicable to the merits of the dispute. Even this type of limitation on party autonomy is not in line with similar arbitration-specific choice of law rules, which do not provide such limitation[58]. Indeed, in almost all arbitration-specific choice of law rules[59], the parties are free to choose any “law” (understood as an exhaustive national corpus of law), not subject to the same restrictions that apply under the conflict of law rules in litigation[60]. Surprisingly, the legislature instead decided to limit the range of laws that parties can designate by excluding the possibility for parties to have Italian law governing the dispute.  This decision contrasts with the reform’s goal of promoting Italian-seated arbitration. Eliminating the possibility to choose Italian law does not promote resort to Italian-seated arbitration, but rather pushes Italian companies, with the economic power to impose a choice of law, to avoid Italian-seated arbitration. In fact, if these companies want Italian law to apply to the merits of a dispute, they will be prompted, because of this provision, to turn to other arbitral seats with greater autonomy.

• The uncertainties generated and unresolved by the new provision

The new provision generates uncertainties that the legislature could have avoided. The employed formulation, “provisions or a foreign law”, does not expressly clarify whether parties are allowed to also choose non-State rules to govern the merit of the dispute. As pointed out above, the most recent arbitration-specific conflict of law rules allows parties to designate “rules of law” to govern the merits of the dispute[61]. Unfortunately, the new Italian arbitration-specific choice of law rule is ambiguous on this point and does not bring definitive certainty as to whether the parties are allowed to make such rules applicable.  However, it should be noted that in the Explanatory Report to Legislative Decree nº 149/2022, the legislature refers to “lex mercatoria, UNCITRAL Model Law, and others,” in relation to “the type of sources that can be invoked by the parties”[62]. However, if the provision were to be interpreted in the sense of allowing the choice of non-State rules, the legislature would have avoided all uncertainties by drafting the choice of law rule differently.

In addition, the text of the new provision fails to answer a number of questions. First, the provision does not clarify whether the choice of “foreign law” (i.e., an exhaustive national corpus of law) is limited only to the substantive law of that State[63]. Moreover, the provision does not establish whether parties are also allowed to make an implicit choice of law or whether the choice must be explicit[64]. Further, the provision neither determines whether parties have the faculty of choosing more than one law applicable to the substance of the dispute[65], nor does it clarify whether and to what extent a negative choice of law is permissible[66]. Finally, the new paragraph of Article 822 does not elucidate which law should govern the validity of the choice of law.

In light of the critique above, the legislature could have better grasped the opportunity to reform (once and for all) a specific-arbitration choice of law rule resolving these issues.

1. Conclusion

To summarize, the new Article 822(2) CCP designed by the legislature is, for all the reasons stated above, not in line with the reform’s goal of making Italy a more suitable arbitral seat and is not consistent with modern approaches to the parties’ choice of law applicable to the merits. Indeed, the formulation employed by the legislature, in addition to leaving open a number of uncertainties, limits the autonomy of the parties temporally and substantively (excluding the possibility to choose Italian substantive law to govern the merits of the dispute).  As suggested by commentary[67], I believe that the legislature should have modelled the reform after the arbitration-specific choice of law rule contained in Article 834 CCP, repealed in 2006, instead of adopting the new provision as it stands today.

Bianca Tavarelli is an Italian lawyer currently pursuing the IBRLA LLM at NYU School of Law. After graduating with honors from the University of Pisa and prior to joining NYU, Bianca practiced law as a trainee lawyer in an Italian boutique law firm specializing in Corporate and Business law. She passed the Italian Bar in July 2022.

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[1] See C. T KOTUBY, A. POMARI, Do the 2021 Reforms of the Italian Code of Civil Procedure Make Italy a Favorable Seat for International Arbitration?, in Matthias Scherer (ed), ASA Bulletin, pp. 344 – 358 (2022).

[2] See Article 1511 of the French Code of Civil Procedure; Article 187 of the Swiss Private International Law Act; Section 1051 of the German Code of Civil Procedure; Section 46 of the English Arbitration Act; Article 34 of the Spanish Arbitration Act; Section 27a of the Swedish Arbitration Act, introduced in the 2019 revision of the Act.  

[3] Note: in the paper, this expression is used interchangeably with “arbitration-specific choice of law rule”.

[4] See supra note 2.

[5] See supra note 1.

[6] I. e. a neutral law. See. W. KÜHN, Express and Implied Choice of the Substantive Law in the Practice of International Arbitration, in Planning efficient arbitration proceedings/The Law Applicable in International Arbitration, p. 383 – 384 (1996).

[7] See i.e. Article 187(1) of the Swiss Private International Law Act: “ the arbitral tribunal shall decide the case according to the rules of law chosen by the parties”; Article 21 of the ICC rules; Article 35(1) of the UNCITRAL Arbitration Rules; Article 35(1) of the PCA Arbitration rules.

[8] F. FERRARI, L. J. SILBERMAN, Getting to the Law Applicable to the Merits in International Arbitration and the Consequences of Getting it Wrong, in Ferrari and S. Kroll (EDS), Conflict of Laws in the International Arbitration, p. 383 (2011).

[9] Such as “UNIDROIT Principles of International Commercial Contracts”.

[10] See supra note 8.

[11] F. FERRARI, Dell’opportunità di una regola di conflitto per individuare le norme sostanziali applicabili negli arbitrati internazionali con sede in Italia: una proposta, In Studium Iuris, Rivista per la formazione nelle professioni giuridica, rivista mensile n. 9/2021 (2021), p. 1025

[12] See supra note 1.

[13] Legislative Decree February 2, 2006 No. 49.

[14] See supra note 2.

[15] See supra note 13.

[16] D. BORGHESI, La Legge applicabile al merito, in M. Rubino-Sammartano, Arbitrato, Adr, Conciliazione, pp. 567 – 580 (2009).

[17] See supra note 11.

[18] Author’s translation of Article 834 of the Italian Civil Procedure Code, repealed by the Legislative Decree n° 49/2006.

[19] Author’s translation of Article 822 of the Italian Civil Procedure Code.

[20] See supra note 11.

[21] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

[22] Article 3(1) Rome I Regulation.

[23] See. F. RAGNO, Article 3, para 20, in F. Ferrari, Concise Commentary on the Rome I Regulation, 2 ed. (2020).

[24] See supra note 11.

[25] I.e. UNIDROIT Principles of International Commercial Contracts.

[26] See supra note 11

[27] See supra note 11, F. RAGNO: “[t]he parties – by opting for non-national rules – incorporate those rules into the contract as contractual terms and, thus, can derogate from just the non-mandatory rules of the otherwise applicable law”.

[28] See supra note 11; P.A. DE MIGUEL ASENSIO, The Rome I and Rome II Regulations in International Commercial Arbitration, in F. Ferrari, The Impact of EU Law on International Commercial Arbitration, p. 177 et seq (2017).; F. ROSENFELD, The Rome Regulations in International Arbitration: The Road not Taken, in F. Ferrari, The Impact of EU Law on International Commercial Arbitration, p. 245 et seq (2017).

[29] Article 35(1) of the UNCITRAL Arbitration Rules: “The arbitral tribunal shall apply the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate.”

[30] See supra note 11.

[31] See supra note 11.

[32] Law No. 206/2021, Article 15, November 26, 2021, ( “Enabling Act”).

[33] Author’s translation from the Enabling Act November 26, 2021 No. 206.

[34] Author’s translation of Article 1(1) Enabling Act November 26, 2021 No. 206.

[35] “Piano Nazionale di Ripresa e Resilienza” ( “PNRR”) is the Recovery and Resilience Plan presented by the Italian Government to access the  “Next Generation Eu” funds.

[36] Article 1(15) of the Enabling Act November 26, 2021 No. 206. See specifically paras. a-h.

[37] “Luiso Committee” (see infra) Explanatory Memorandum for the Reform of the Italian Civil Procedure, p. 17 (24 May 2021).

[38] “Luiso Committee” is the Commission for the Development of Interventions on Civil Process and Alternative Instruments (Pres. Prof Francesco Paolo LUISO), established within the Legislative Office of the Ministry of Justice in accordance with the Ministerial Decree of March 12, 2021. 

[39] Author’s translation of  Explanatory Memorandum for the Reform of the Italian Civil Procedure, p. 17 (2021).

[40] Ibidem.

[41] See M. BENEDETTELLI, Lett. D: Legge applicabile, in Benedettelli, Briguglio, Carlevaris, Carosi, Marinucci, Panzarola, Salvaneschi, Sassani, L’arbitrato della legge di delega (commento ai principi in materia di arbitrato della legge di delega n. 206 del 21 novembre  2021, art. 1, c. 15), Rivista dell’Arbitrato, Fascicolo 1, p. 50 – 65 ( 2022).  

[42] Author’s translation of  Explanatory Memorandum for the Reform of the Italian Civil Procedure, p. 17 (2021).

[43] See supra note 32.

[44] Author’s translation of Article 1(15)(d) Enabling Act November 26, 2021 No. 206.

[45] See supra note 41.

[46] Ibidem.

[47] Ibidem.

[48] Particularly the gap relating to the identification of the criteria by which Arbitrators should determine the applicable law in the absence of a valid choice by the parties.

[49] Legislative Decree October 10, 2022, No. 149.

[50] Article 822(2) CCP introduced by the Legislative Decree October 10, 2022, No. 149.

[51] Author’s translation of Article 822(2) CCP introduced by the Legislative Decree October 10, 2022, No. 149.

[52] Article 822(2) CCP.

[53] Explanatory Report to Legislative Decree October 10, 2022, No. 149 of October 19, 2022, Ministry of Justice (2022).

[54] See note 53, p. 99. Author’s translation.

[55] For examples see supra note 2.

[56] See supra Section II, p. 3.

[57] See supra note 52.

[58] See supra note 55.

[59] I.e. Article 1511(1) of the French Code of Civil Procedure, “the arbitral tribunal shall decide the dispute in accordance with the rules of law chosen by the parties or, where no such choice has been made, in accordance with the rules of law it considers appropriate”; Section 27a of the Swedish Arbitration Act, introduced in the 2019 revision of the Act, “[t]he dispute shall be determined by applying the law or rules agreed to by the parties”.

[60] See supra note 8, pp 373 – 374.

[61] See supra Section I, pp. 1 – 2.

[62] See supra note 53, p. 100. Author’s translation.

[63] Namely whether the “renvoi” is prohibited or not, see supra note 8, p. 391

[64] See supra note 8, pp. 388-389.

[65] I.e. “dépeçage” see supra 8, p. 387.

[66] I.e., in contrast with a positive choice of law.

[67] See supra note 11.

Cambridge University Press has just published the 3 volume Cambridge Compendium of International Commercial and Investment Arbitration, edited by Professor Franco Ferrari, the Center’s Director, together with Professors Andrea Bjorklund (McGill University School of Law) and Stefan Kröll (Bucerius Law School). The Compendium contains contributions for most of the foundational principles and concepts underlying international arbitration. Each contribution takes a holistic view of international arbitration, as the contributions tackle core concepts from both a commercial and an investment arbitration perspective, focusing on the fundamental issues underlying the various topics rather than on the solutions adopted in any particular jurisdiction, thus making the Compendium a truly cross-border, transnational resource. This innovative approach will allow readers to identify the commonalities as well as the differences between commercial and investment arbitration, whether and where cross-fertilization has taken place and what consequences it can have. This approach allows the Compendium to be a tool in promoting the creation of a culture of international arbitration that considers commercial arbitration and investment arbitration as part of a whole but with certain distinct features particular to each.

The Compendium is organized in 14 parts, namely Foundations, Public Law Questions Relating to Arbitration, Stakeholders in Arbitration, Applicable Law, Jurisdiction of the Arbitrator, the Arbitral Tribunal, Procedural Questions in Arbitration, Role of State Courts in Arbitration, Awards, Post Award Issues, Legal Concepts, Areas of Concern, Arbitration and Related Fields, and EU Law and Arbitration.

The contributors of the 70 papers composing the Compendium are, in the order of publication of their contribution, Florian Grisel, Emmanuel Gaillard, Franco Ferrari, Friedrich Rosenfeld, Fabien Gélinas, Andrea K. Bjorklund, Petra Butler, Marc Bungenbergl, August Reinisch, Giuditta Cordero-Moss, Daniel Behn, Christopher R. Drahozal, Victoria Shannon Sahani, Stephan Wilske, Laura Bräuninge, Andrea Carlevaris, Luke Nottage, Chester Brown, Luca G. Radicati di Brozolo, Christophe Bondy, Lukas Vanhonnaeker, Shahla Ali, Sabine Katrin Neuhaus, Monique Sasson, Jonathan Brosseau, Christophe Seraglini, Julien Fouret, Stavros Brekoulakis, Vladimir Pavić, Stefan Kröll, Elian Keller, John J. Barceló III, Alan Scott Rau, Jan Paulsson, Thilo Kerkhoff, R. Doak Bishop, Caline Mouawad, Jessica Beess und Chrostin, Kun Fan, Jacomijn van Haersolte-van Hof, Mathew Stone, Sébastien Besson, S. I. Strong, Maxi Scherer, Dharshini Prasad, Dina Prokic, Chiara Giorgetti, Saud Aldawsari, D. Brian King, Elliot Friedman, Tibor Várady, Christopher Kee, Gloria Alvarez, David Holloway, Christopher Boog, N. Jansen Calamita, Dafina Atanasova, Edna Sussman, Frédéric Bachand, Patricia Shaughnessy, Linda J. Silberman, Robert U. Hess, Geneviève Saumier, Francesca Ragno, George A. Bermann, Mark Feldman, Laurence Boisson de Chazournes, Elise Ruggeri Abonnat, Diego P. Fernández Arroyo, Alexandre Senegacnik, Stephan W. Schill, Susan D. Franck, Michael Waibel, Gerhard Wagner, Ronald A. Brand, Catherine Kessedjian, Ursula Kriebaum, Richard Happ, Sebastian Wuschka

Apart from having edited the Compendium, Professor Franco Ferrari co-authored two contributions, entitled “Limitations to Party Autonomy in International Arbitration” (pp. 47-81), and “Applicable Law in Commercial Arbitration” (pp. 482-511) respectively. For more information, please see the Contents pages taken from the Compendium.

On March 6, 2023, the Center for Transnational Litigation, Arbitration, and Commercial Law will host an in-person seminar entitled “Empirical Data on Annulment of International Awards: What to learn from it? ArbDossier.com and Beyond”. The seminar, aimed at both scholars and practitioners, will survey recent initiatives (including ArbDossier) relating to the collection of data on the annulment  of international awards in different jurisdictions, including China, India, Italy, and Singapore, and examine the role this data may play, if any, in the selection of the seat of arbitration. The seminar will also address the question of whether the data may be used to qualify a jurisdiction as an arbitration-friendly one and, if so, what implications this qualification may have.
 
The seminar will feature Dr. Monique Sasson (a former scholar-in-residence at the Center), Marco Seregni (an Italian lawyer enrolled in our LL.M. program), Bojana Bilankov (a graduate student in out IBRLA LL.M. program and editor-in-chief of ArbDossier), Murtuza Federal (the founder of the Indian firm Federal & Company), Gautam Bhattacharyya (a partner at Reed Smith LLP, operating out of London and Singapore), and Devarsh Saraf (a graduate student at Columbia Law School), the co-founder of www.ArbDossier.com.

For more info, please see the attached flyer.

The Center is glad to announce the publication of the book entitled “Recognition and Enforcement of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime”, authored by the Center’s Director, Professor Franco Ferrari, together with Dr. Friedrich Rosenfeld, Global Adjunct Professor at NYU Paris and Partner at the Hamburg based law firm Hanefeld, and Professor Charles T. Kotuby, Professor of Practice and Executive Director of the Center for International Legal Education at the University of Pittsburgh.

The book analyses case law from major arbitration jurisdictions in view of examining the New York Convention’s scope of application, the duty to recognize and enforce arbitration agreements and arbitral awards as well as its limitations, the grounds for refusal related to jurisdiction, the grounds for refusal related to proper notice and the ability to present one’s case, the grounds for refusal related to procedure, the grounds for refusal related to the award’s status under the #law applicable to it, as well as the grounds for refusal related to public policy, and the procedure and formal requirements for recognition.

Combining insight from arbitration practice with perspectives from private international law, the book underlines the importance of the Convention being a treaty of international law, arguing that this entails a requirement to autonomously interpret the key concepts it relies on. However, the book also shows where municipal laws are relevant and discusses the private international law principles through which these instances can be identified.

Addressing one of the core treaties of international arbitration, this book is a useful reading for practitioners and judges alike.

For more info, please click here.

On 25 and 26 August 2022, the Center for Transnational Litigation, Arbitration, and Commercial Law hosted, together with Columbia Law School and the Arbitration Channel,  a conference on “Arbitration in 2 Worlds” focusing on peculiarities of the Brazilian and the US arbitration regimes. On that occasion, the Center’s Director, Professor Franco Ferrari, gave the keynote address entitled “National International Commercial Arbitration”, based on a recent publication of his (32 Am. Rev. Int’l Arb. 439 (2022), available here). In this address, Professor Ferrari highlighted the importance played by national arbitration laws and their many differences. This lead Professor Ferrari to state that the differences in the various national arbitration regimes, which may apply during an arbitration’s life cycle, do not allow one to speak of a uniform concept of “international commercial arbitration” subject to a uniform regime, although there are, of course, very many common traits in each international commercial arbitration. It is therefore correct to state, as one commentator had just done in the Handbook of International Arbitration, that “such label[s] do not do justice to the complexities of arbitration law and convey an impression of uniformity that does not correspond to reality”.

The video of Professor Ferrari’s keynote is now available on the Arbitration Channel’s YouTube channel.

On October 10^th, 2022, Professor Franco Ferrari, the Center’s Director, will participate as the keynote speaker in the CIArb / CSP Brazil 2022 – Capacity Sharing Program – Goiânia Edition2022. The two-day event, to take place on October 10th and 11th, 2022, and put together by the co-chairs Rose Rameau and Mauricio Gomm, will feature speakers with diverse backgrounds who will give a comprehensive introduction to international arbitration, namely Aureliano Amorim, Caroline Bradley, Napoleao Casado, Paulo Marcos de Campos Batistas, Katherine Dedrick , Frederico Favacho, Hon. Judge Andrea Galhardo Palma, Lucas Mendes, Marlos Nogueira, Thiago Marinho Nunes, Jim Reiman, Christiane Reis, Carla Sahium, and Carol Santoro.

As for Professor Ferrari’s talk, it will be entitled “Is Arbitration a Global Dispute Resolution Phenomenon”. It will show that even though arbitration is a global phenomenon, and even though there may be a global notion of arbitration, there is and will be no global arbitration regime.

For more information on the program and how to register, click here.

Professor Franco Ferrari, the Director of the Center, and Professor Marco Torsello, professor of law at Verona University School of Law and Global Professor of Law (at NYU Paris), have just published the third edition of their book on the 1980 United Nations Convention on Contracts for the International Sale of Goods. The Convention, which covers more than 3/4 of world trade, is in force in 95 States, including the United States and its most important trading partners. The book, which is part of West’s Nutshell series and is aimed at both practitioners and scholars, covers the Convention’s basic rules one should be aware of, so as to avoid surprises when doing business with parties having their place of business in other countries. For more information, please click here.

The Center is very glad to be able to announce that it will be one of the co-hosts of the 2022 M&A Conference of the Americas to take place in person on 8 August 2022 in São Paulo, Brazil. The event, co-hosted by FGV – Fundação Getulio Vargas (Núcleo de Direito, Economia e Governança) and the School of Law of the University of São Paulo, will be divided into 7 sessions and feature the organizers, Professor Maurizio Levi-Minzi (Adjunct-Professor at NYU and Partner at Debevoise & Plimpton), Professor Mariana Pargendler (from FGV DIREITO SP and Global Professor of Law at NYU Law in Buenos Aires), Professor Carlos Portugal Gouvêa (from USP and Founding Partner of PGLaw), and the following speakers and moderators: Marcelo von Adamek, Paulo Cezar Aragão, André Rodrigues Corrêa, Rodrigo Fialho Borges, Paula Forgioni, Felipe Nutti Giannattasio, Ítalo Godinho Martins, Juliana Krueger Pela, Fernando Magno, Francisco Marino, Judith Martins-Costa, Carlos Portugal Gouvêa, Guilherme Recena Costa, Tarcila Reis Jordão, Francisco Reyes Villamizar, Gabriel Saad Kik Buschinelli, Peter Christian Sester, Renata C. Steiner, Carlos Ari Sundfeld, José Alexandre Tavares Guerreiro, Marcelo Trindade, and Lie Carmo.

For more information and the full program, please click here.

The Center is glad to be able to announce that on 11 July 2022, Professor Franco Ferrari, the Center’s Director, will give the opening speech on the occasion of the very first NOVA Summer School on International Arbitration, which will take place in person from 11-18 July 2022 in Lisbon. In his speech, entitled “national international commercial arbitration”, Professor Ferrari will

elaborate on his view, expressed in various papers, that it is national law that confers juridicity to arbitration, i.e., “where the source of [the arbitrators’] power and the legal nature of the process and of the ensuing decision stem from” (Gaillard).

Professor Ferrari joins a stellar group of academics and practitioners involved in the Summer School, namely Gustavo Fernandes, Joana Galvão Teles, Lauro Gama Jr, Elena Gutiérrez García de Cortázar , José-Miguel Júdice,, Jan Kleinheisterkamp  Fernando Mantilla-Serrano, André Marini, Sofia Martins, Pedro Metello de Nápoles, André Pereira da Fonseca, Georgios Petrochilos QC, Ina Popova, Ashique Rahman, Mélanie Riofrio Piché, Catherine Rogers, Eduardo Silva-Romero, Patricia Saiz, Luís Heleno Terrinha, Pacome Ziegler, and Gary Born, who will give the closing speech.

For the full program, see here.

On 23 Jun 2022, the European Commission published the outcome of the selection process for arbitrators and trade and sustainable development (TSD) experts in bilateral disputes under the European Union’s trade agreements with third countries. The Center is delighted to be able to announce that Professor Franco Ferrari, its Director, was named as an individual suitable for appointment as arbitrator in the above setting.

By way of background: in December 2020, the European Commission called for applications in connection with the renewal of the pool of arbitrators and the separate pool of trade and sustainable development (TSD) experts for dispute settlement panels under trade agreements to which the EU is a party. A selection panel of experienced international judges and academics examined the candidates to confirm their suitability for appointment.

Following the above step, the Commission decided to draw up its lists of individuals suitable for appointment. The Commission will draw on the lists to make proposals for the appointment of arbitrators and TSD experts in a specific case or for pre-agreed lists (rosters) under the relevant bilateral agreements with third countries. The Commission notes that inclusion in the list of suitable individuals does not guarantee the appointment for any specific case or roster in the future.

For the complete list, see here.

The Center for Transnational Litigation, Arbitration, and Commercial Law is glad to be able to invite you to a webinar entitled “Evidence in International Arbitration” to take place on June 30, 2022, starting at 9.30 am (NY time)/15.30 (CET). The event, which is co-hosted by  the  Danish Institute of Arbitration (DIA), and the Copenhagen Business School (CBS), will address various issues regarding evidence in international arbitration raised by some of the contributions to the “Handbook of Evidence in International Arbitration: Key Issues and Concepts”, which Professor Franco Ferrari and Dr Friedrich Rosenfeld have just published. Specifically, after a few introductory comments by Professor Ferrari and Professor Peter Arnt Nielsen (from CBS), the following topics will be addressed by the following colleagues: “The Interplay Between the Post-award and the Pre-award Regimes with Respect to a Tribunal’s Treatment of Evidentiary Issues” –  Friedrich Rosenfeld; “Iura Novit Curia” –Giuditta Cordero-Moss; “Tribunal-Appointed Experts” –Jonathan Lim; “Costs and Other Sanctions” –Hattie Middleditch; “The Danish Perspective” – Kenneth Hvelplund Pedersen and Hon. Julie Arnth Jørgensen. Steffen Pihlblad, the Secretary-General of DIA, will give the closing remarks.

For more info, please see the attached flyer.