In a recent order issued on 4 January 2025 during precautionary proceedings, the Court of Milan addressed a key issue concerning the authority of arbitrators to grant precautionary and interim measures, a power conferred upon them following the 2023 reform of the Italian Code of Civil Procedure ("ICCP") by virtue of the legislative Decree No. 149/2022 (the so-called "Cartabia" Reform).
The dispute arose under a distribution contract signed in 2022, which contained an arbitration clause referring to the Rules of the Milan Chamber of Arbitration. Given that the parties' agreement predated the 2023 reform expressly authorising arbitrators to grant precautionary measures under Article 818 ICCP,1 the Court examined whether the power to grant precautionary measures rested with the arbitrators or remained with the state courts.
Therefore, the Court was faced with two possible approaches to resolving this issue: either to interpret the arbitration clause as implicitly excluding the arbitrators' power to grant interim measures, since the clause was agreed upon at a time when such powers were not available under the ICCP; or to give precedence to the amended arbitration rules of the Milan Chamber of Arbitration referred to in the parties' agreement, which now clearly confer this power on arbitrators.
The Court of Milan ultimately ruled in favour of the first approach, holding that the Court retains the authority to grant interim measures in this case. The Court reasoned that, at the time when the parties agreed to the arbitration clause in the 2022 distribution contract, ICCP did not permit arbitrators to grant precautionary measures. As such, it could not be presumed that the parties intended to confer a power that had not yet been made legally available to arbitrators.
In summary, arbitrators who did not have precautionary powers at the time the arbitration clause was agreed upon cannot acquire those powers retroactively, even if the clause includes a general reference to arbitration rules that now confer such authority. Interpreting the clause otherwise would risk attributing to the parties an intention they could not have had at the time of the agreement. The Court's decision reflects a strict reading of party intent based on the legal framework in force when the agreement was concluded. Simply put, arbitrators do not have jurisdiction to order precautionary measures when the arbitration clause was stipulated prior to the entry into force of the 2023 reform.
1 The revised Article 818 of the ICCP stipulates that: "The parties, by means of the arbitration agreement or a written act prior to the initiation of the arbitration proceedings, including by reference to arbitration rules, may grant the arbitrators the power to issue interim measures. The arbitrators' competence on interim measures is exclusive."
