This article reassesses the reach of the 2022 Cartabia Reform on Italian arbitration. It focuses on three levers: (i) arbitrators’ interim measures when conferred by the parties (Article 818 c.p.c.) and their enforcement through state courts; (ii) corporate arbitration; and (iii) jurisdictional objections and the codified competence-competence rule (Article 817 c.p.c.). Using comparative sources and recent case law, the article argues that what affects outcomes is not an inherent “structural asymmetry” but coordination frictions—namely: the need for judicial intervention to give effect to non-pecuniary orders; heterogeneous procedural pathways across fora and rules; and contact points with EU law (public-policy review, intra-EU enforcement constraints, and state immunity). The reform does not create a self-contained regime; it yields a court-supported model whose performance turns on how legislators, courts, and arbitral institutions implement the new powers (e.g., by drafting clauses that grant interim powers, streamlining enforcement protocols, and clarifying court–arbitration interfaces). The conclusion sets out targeted proposals to foster a more coherent and predictably enforceable arbitral order.
Table of Contenents
1. Introduction
Historically, Italian arbitration law adopted a court-centred design: before the Cartabia Reform, Article 818 of the Italian Code of Civil Procedure (c.p.c.)1 barred arbitral tribunals from granting interim measures, thereby routing time-sensitive applications—such as conservatory attachments (sequestro conservativo, Article 671 c.p.c.), judicial sequestration of disputed assets (sequestro giudiziario, Article 670 c.p.c.), urgent injunctive relief (Article 700 c.p.c.) and pre-trial taking of evidence (istruzione preventiva, e.g., Articles 692 ff. and 696-bis c.p.c.)—to state courts.2. The absence of arbitrator-ordered interim relief was often identified in the literature as a practical deterrent to selecting Italy as the seat of arbitration, especially vis-à-vis European seats where tribunals possess precautionary powers.3. Available institutional statistics do not evidence a sharp contraction in filings.4.
Against this background, Legislative Decree No. 149 of 10 October 20225 amended the Italian Code of Civil Procedure . Because Italian arbitration law is contained in the c.p.c., Book IV, Chapter VIII (Articles 806–840), these amendments directly modified the arbitration statute. In the field of interim protection, the new Article 818 c.p.c. adopts an opt-in model: arbitral tribunals may grant interim measures only where the parties have expressly empowered them, either in the arbitration agreement or by incorporating institutional rules that confer such authority.6. Articles 818-bis and 818-ter complete the scheme, allocating review of arbitral interim measures to the Court of Appeal and their enforcement to the president of the competent Tribunal tribunal of the place where the measure is to be executed.
The reform brings Italy closer to jurisdictions—such as France, Switzerland and Germany—where tribunals have default precautionary powers, while Italy retains an opt-in requirement for arbitrators’ interim authority7. In doing so, the Italian model reduces exclusive reliance on state courts for urgent relief and is designed to shorten timelines and strengthen the practical effectiveness of arbitral proceedings.8.
In parallel, the legislature has addressed long-standing jurisdictional ambiguities by introducing Article 819-ter c.p.c., which clarifies forum allocation: unless the arbitral tribunal is seized to rule on its own jurisdiction under Article 817 c.p.c., the judge decides on the existence, validity or effectiveness of the arbitration agreement 9
Another fundamental innovation concerns corporate arbitration, now comprehensively regulated under Title VIII, Chapter VI-bis of the Italian Code of Civil Procedure (Articles 838-bis to 838-sexies c.p.c.). These provisions introduce a clearer regime for statutory arbitration clauses in company bylaws, confirm the arbitrability of disputes involving corporate resolutions, and allow arbitral tribunals, under defined conditions, to suspend shareholders’ meeting resolutions pending the award.10.
Despite these advances, two concrete interpretive questions have already produced divergent first-instance decisions:
- the intertemporal effect of Article 818 on pre-reform clauses; and
- whether a “mobile” reference to institutional rules suffices to confer precautionary powers.
In Milan, the court11 retained jurisdiction over an Article 700 c.p.c. application, reasoning that a pre-reform arbitration clause could not be read as conferring precautionary powers on arbitrators—even though the institutional rules designated in the clause now provide for such powers. By contrast, in Venice,12, the Enterprise Section upheld an arbitration objection grounded in a by-law clause with a “mobile” reference to institutional rules and pointed to the Chamber of Arbitration of Milan’s Arbitration Rules in force from 1 March 202313 as conferring interim-measure authority on the tribunal.14.
Moreover, the reform must be evaluated in light of European Union law. Although arbitration is excluded from the scope of the Brussels I bis Regulation (Article 1(2)(d)), arbitration-adjacent court measures and the recognition of judgments concerning the validity of arbitration agreements continue to raise interface issues. Specific concerns arise from the contours of public-policy review in recognition/enforcement proceedings and from the CJEU’s jurisprudence on intra-EU arbitration—most notably the Achmea (C-284/16), Komstroy (C-741/19) and PL Holdings (C-109/20) cases.15.
This article critically examines the legal transformation introduced by the Cartabia Reform. It focuses on the newly conferred power to grant interim measures, the realignment of jurisdictional boundaries between courts and arbitral tribunals, and the implications for corporate arbitration. In addition, it considers the European dimension, including the impact of EU law on recognition and enforcement, and the growing tension between arbitration and state immunity doctrines.
By combining a doctrinal and jurisprudential analysis with comparative perspectives, the article aims to assess whether the Italian system is converging towards a more autonomous and effective model of arbitration, and whether it offers transferable solutions for reconciling arbitral authority with judicial oversight in a European legal space.
2. The new italian framework for arbitration
The reform enacted by Legislative Decree No. 149 of 10 October 2022, known as the Cartabia Reform, introduced targeted amendments to the Code of Civil Procedure that directly affect arbitration (Arts 806–840 c.p.c.) and, in particular, introduced targeted amendments to the Code of Civil Procedure that directly affect arbitration (Arts 806–840 c.p.c.)16 and the regime of interim protection. arbitration. Among the innovations introduced by this wide-ranging intervention is the long-awaited recognition of arbitrators’ power to issue interim measures—a precondition often singled out by commentators for ensuring effective urgent protection within arbitration, . This change brings Italy closer to the standards adopted by most arbitration-friendly jurisdictions in Europe (while retaining an opt-in model rather than a default power).
Until recently, the Italian Code of Civil Procedure excluded such power in categorical terms. Article 818, in its original form, stated that “arbitrators may not grant interim or protective measures” (while retaining an opt-in model rather than a default power).That ban reflected a traditional view that precautionary jurisdiction and coercive power are prerogatives of state courts.17. Such a conception, although historically grounded, increasingly conflicted with the procedural expectations of cross-border commerce.
The new Article 818 c.p.c., introduced by the reform, changes this assumption: arbitrators are now allowed to issue interim measures, but only if expressly authorised by the parties. This power, however, is not presumed—it depends on an express conferral in the arbitration agreement or via the adoption of institutional arbitration rules that include such authority. The text, therefore, adopts a so-called opt-in model. As scholars have observed, this solution contrasts with other legal systems, such as France or Switzerland, where arbitrators possess inherent interim powers unless explicitly excluded.18
However, the requirement of express authorisation is not free from ambiguity. It remains uncertain whether a general reference to institutional rules—such as Article 26 of the CAM Rules or the ICC Rules—is sufficient to meet the threshold of “express” delegation, particularly when those rules were amended after the agreement was signed. This uncertainty creates friction between the principle of party autonomy and the practical enforceability of arbitral jurisdiction.19 The debate centres on the temporal relevance of arbitral rules and their incorporation by reference, echoing broader concerns about contractual interpretation in dynamic procedural settings.
This ambiguity has already produced divergent judicial responses. The Court of Milan (order of 4 January 2025) retained state-court jurisdiction over an Article 700 c.p.c. application, holding that a pre-reform clause with a generic reference to CAM Rules could not be read as conferring precautionary powers on arbitrators. By contrast, the Court of Venice (order of 11 November 2024, Enterprise Section) upheld an arbitration objection where the by-law clause contained a “mobile” reference to institutional rules and pointed to the CAM Rules in force from 1 March 2023 as conferring interim-measure authority on the tribunal.
Beyond this interpretative uncertainty lies a deeper issue: arbitral interim measures in Italy cannot operate in isolation from judicial intervention. While the legislative reform grants arbitrators new powers, it does not dismantle the underlying dependency on the ordinary judiciary. Before the arbitral tribunal is constituted (or the sole arbitrator accepts the appointment), applications for interim relief lie with state courts; once the tribunal is in place and the parties have opted in under Article 818 c.p.c.,20, state-court precautionary jurisdiction ceases.21. Arbitral interim measures are not self-executing: their effectiveness hinges on an enforcement decree (decreto di esecutorietà) issued by the President of the competent Tribunal tribunal under Article 818-ter c.p.c.22; only thereafter may bailiff-led execution proceed, including vis-à-vis third parties.23.
Article 818-bis c.p.c. provides a single-tier review before the Court of Appeal, with a short time-limit and confined grounds. This built-in scrutiny serves due-process control; where tribunal and court take different views, any overlap is narrow but real and must be managed procedurally (e.g., sequencing applications and avoiding duplicative filings).24.
In light of these structural limits, what emerges is a qualified, court-supported autonomy. The dependence on court machinery is a policy choice: it preserves due-process control and protects third parties and public registers at the margins of coercion, while leaving the decision to grant relief within the arbitral forum once the parties have opted in under Article 818 c.p.c.25
Against this backdrop, there remains a strong case that the reform corrects a long-standing deficiency. It makes interim relief available within arbitration on an opt-in basis (enhancing the tribunal’s toolbox), couples it with a confined, single-tier review before the Court of Appeal under Article 818-bis c.p.c. (containing disruption), and channels efficacy through a predictable judicial gateway at enforcement (supporting third-party effectiveness).26. Early overviews describe Italy as arbitration-friendly and expect growth in international arbitrations, which is consistent with this design. Whether the change will translate into measurable time-and-cost efficiency will depend on practice: clear clauses that expressly confer precautionary powers (or incorporate suitable institutional rules), prompt recourse to the arbitral track once the tribunal is constituted, and procedural coordination to avoid duplication where a state-court application was filed pre-constitution.
Put differently, the new framework is deliberately court-supported: its practical dividends—faster relief and procedures aligned with party needs—materialise when parties activate the Article 818 opt-in and when courts apply Arts 818-bis and 818-ter with calibrated restraint, avoiding duplicative scrutiny and undue formalism.
3. Interim Measures and the Interface with State Courts
After the 2022 reform, arbitral interim powers operate alongside—rather than apart from—state-court support.27. The result is not an autonomous precautionary system, but a dual-track regime that requires active coordination between tribunals and courts to avoid frictions and inefficiencies.
A first structural friction concerns timing. Until the tribunal is constituted (or the sole arbitrator accepts), urgent applications lie with state courts; once constituted and expressly empowered under Article 818 c.p.c., competence shifts to the arbitral tribunal. In practice, the constitutive phase can take time—especially in ad hoc proceedings or where a party delays appointments. Institutional rules (e.g., CAM Rules, Arts 26 and 44)28 allow tribunal-ordered measures and an emergency-arbitrator track, but only once the relevant opt-in and procedural preconditions are met. This temporal gap explains why parties may need to seek court protection pre-constitution, with inevitable costs in efficiency and confidentiality.29.
Parallel competences also need calibration. Article 669-quinquies c.p.c.,30, as coordinated with Article 818, permits state courts to decline precautionary jurisdiction once an arbitral tribunal is seized and empowered; nonetheless, no formal information-sharing mechanism exists between systems. Absent a unified notice protocol, ex parte orders issued in different fora can occasionally overlap.31. Good practice is for parties to promptly inform both fora of any pending or granted measures and for institutions to encourage disclosures to minimise duplication.
Enforcement and third parties are another also pressure points. Arbitral interim measures are not self-executing: effectiveness hinges on an enforcement decree by the President of the competent Tribunal (Article 818-ter c.p.c.), after which bailiff-led execution may proceed, including vis-à-vis third parties. This state-court gateway is functionally justified (due process, protection of public registers and non-parties) but can slow down relief where banks, registrars or regulators are involved. In corporate disputes, suspension of shareholders’ resolutions or board decisions often touches third-party or registry interests, increasing reliance on court machinery.
Strategic behaviour remains possible. Some parties seek urgent court relief while resisting or stalling tribunal constitution, then pivot to arbitration after an adverse judicial outcome. The architecture mitigates (but does not eliminate) these incentives: courts may decline once the tribunal is seized and empowered; tribunals may consider prior court measures in structuring subsequent relief; and parties face a single-tier appeal (Article 818-bis) and the judicial enforcement filter (Article 818-ter), which together discipline forum shifts.32
Finally, institutional coordination rules are still thin. CAM, ICC and other sets enable arbitrator-issued interim relief but offer limited protocols on cross-system coordination (notice, sequencing, precedence). In practice, effectiveness turns on ad hoc cooperation—clear drafting that expressly confers precautionary powers (or incorporates rules that do), swift constitution, early disclosure of parallel steps, and measured use of court support (appeal/enforcement) to avoid duplication.33
In sum, the Reform expands the tribunal’s toolbox but leaves a court-supported model in place. With clear opt-in clauses, timely recourse to the arbitral track, and procedural coordination (declinations under 669-quinquies, single-tier review under 818-bis, enforcement under 818-ter), the dual-track can operate efficiently; without these safeguards, residual frictions and tactical behaviour may re-emerge.
4. Corporate Arbitration and the Role of Statutory Clauses
The Cartabia Reform introduced a dedicated legal framework for corporate arbitration within the Italian Code of Civil Procedure through Articles 838-bis to 838-sexies c.p.c. These provisions regulate the validity and scope of arbitration clauses inserted into a company’s articles of association (clausole compromissorie statutarie), aligning domestic legislation with the jurisprudence developed since the early 2000s and codifying previously uncertain practices.
Until the reform, the enforceability of statutory arbitration clauses rested on jurisprudential constructions, particularly the landmark decision Cass. civ., sez. un., 13431/2001, which admitted the validity of such clauses under strict conditions.34 This recognition was initially controversial, raising concerns about consent, equality of arms, and the accessibility of justice in corporate contexts.35 The risk of disproportionately favouring majority shareholders over minority stakeholders was at the centre of doctrinal debate.
Article 838-bis c.p.c. now codifies these principles and provides that arbitration clauses in the by-laws are effective if they clearly define the scope of arbitrable matters, provide for ritual arbitration36 (i.e., the statutory form governed by Book IV, Chapter VIII of the c.p.c., resulting in an award rendered under Article 823 and enforceable in Italy upon an exequatur under Article 825 c.p.c.), and ensure the equality of parties in the composition of the arbitral tribunal.
Importantly, the clause must be approved by a qualified majority—at least two-thirds of the share capital—and absent or dissenting shareholders retain a ninety-day withdrawal right (Article 838-bis(5) c.p.c.)37; this super-majority/withdrawal regime signals the clause’s heightened status within corporate governance.
Article 838-ter c.p.c. introduces a nuanced regime for subjective applicability: shareholders who were present or represented at the meeting approving the clause are automatically bound, while absent or dissenting shareholders are bound only upon subsequent subscription or explicit acceptance.38 This construction aims to preserve corporate cohesion without suppressing individual autonomy.39
A particularly sensitive area is the arbitrability of challenges to corporate resolutions. Under Article 838-quater c.p.c., such disputes are admissible to arbitration if the clause is validly included and respects the procedural guarantees required by law.40 This provision resolves long-standing tensions regarding whether private arbitrators could exercise jurisdiction over acts producing erga omnes effects within the company.41
Moreover, corporate arbitrators may now adopt interim measures, including the suspension of challenged resolutions. In the post-reform system this is grounded in the combined operation of Articles 818 and 838-quinquies c.p.c.: tribunals may grant interim relief (including suspension) where the parties have conferred such power, subject to the compatibility limits of corporate disputes and to court review/enforcement. This reform overcomes a restrictive reading previously adopted by several courts, which had denied such authority to arbitrators on the basis of presumed public interest in the validity of company resolutions.42
Nonetheless, several doctrinal critiques remain. First, there is concern regarding the independence and neutrality of arbitrators appointed under statutory clauses, especially in closely held corporations where the controlling shareholders may influence appointments.43 That concern must be read against the statutory parity requirement: Article 838-bis c.p.c.44 conditions the validity on “equality of the parties in the composition of the arbitral tribunal,” thereby excluding appointment mechanisms that privilege corporate organs or controlling shareholders; courts have begun to police this requirement (e.g., Milan, order 27 February 2025, refusing a generic by-law clause that failed to secure parity). The illusion of equality may mask structural imbalances in appointment procedures, particularly when arbitration is compulsory under the by-laws.
Second, transitional issues persist: for clauses adopted before the reform, Italian courts have questioned whether the new procedural safeguards apply retroactively; the same Milan order of 27 February 2025 refused to enforce an arbitration clause that generically referred to “arbitration according to the by-laws,” on the grounds that it failed to ensure equality in the constitution of the tribunal. This early case law confirms strict scrutiny for pre-reform clauses and underscores the need for textual precision and procedural balance.
A recent first-instance decision further illustrates the perimeter of arbitrability in corporate matters: the Milan Enterprise Court (6 May 2025) held arbitrable a shareholder’s claim for a declaration of the company’s dissolution (available right within the corporate sphere), while excluding the appointment of the liquidator as non-arbitrable (an organisational act reserved to voluntary jurisdiction).45. This functional split—status questions to arbitration; organisational appointments to the state courts—coheres with the post-reform architecture and protects third-party interests.
Despite these open questions, the legislative framework introduced by the Cartabia Reform offers greater clarity, accessibility, and legal certainty. In particular, the statute hard-codes safeguards that address the main criticisms:
- a super-majority requirement and a withdrawal right for absent/dissenting shareholders (Article 838-bis(5)) protect minorities;
- an equality-of-arms rule for tribunal composition (Article 838-bis(3)) prevents capture;
- grounds and procedures for challenges/disclosures (Article 815) ensure independence and impartiality; and
- interim relief is available within arbitration (Articles 818, 838-quinquies) but subject to single-tier court review (Article 818-bis) and judicial enforcement (Article 818-ter), thereby safeguarding third parties and public registers.
It reconciles the internal autonomy of companies with the constitutional principles of fair trial, especially where minority shareholders and directors are involved. Rather than subordinating justice to internal governance, the new provisions construct corporate arbitration as a court-supported procedural system governed by external standards of neutrality and due process, so that gains in speed and party-tailored adjudication do not come at the expense of fairness or enforceability.
5. Jurisdiction and the New Role of Article 819-ter c.p.c.
One of the most impactful innovations introduced by the Cartabia Reform concerns the redefinition of the procedural status of the arbitration agreement under Italian law. This reform is encapsulated in the revised Article 819-ter c.p.c., which governs the procedural treatment of arbitral jurisdiction and its interaction with ordinary courts. First enacted in 2006 to deal with court–arbitration transfers (translatio iudicii), Article 819-ter now entrenches a jurisdictional framing of the exceptio compromissi and clarifies procedure and remedies.
The new text of Article 819-ter (1) c.p.c. provides that the existence of an arbitration agreement—whether ad hoc or institutional—constitutes a matter of jurisdiction and not of mere admissibility or procedural priority Three practical consequences follow. First, the objection must be raised with the first defence on pain of forfeiture; if timely raised, the court must decline jurisdiction unless it finds the clause null, inoperative or incapable of being performed (the same standard used in Article 8 of the UNCITRAL Model Law). Second, once arbitration is pending, state courts must refrain from deciding issues concerning the validity or effectiveness of the arbitration agreement (competence-competence/negative effect). Third, for ritual arbitration the state court’s ruling on the (non-)existence of arbitral jurisdiction is reviewable by regolamento di competenza before the Italian Supreme Court (Corte di Cassazione)46 under Articles 42–43 c.p.c.; it is therefore inaccurate to speak of a “removal” of access to the Supreme Court. Ordinary appellate routes (reclamo/appello) remain relevant for other aspects; in non-ritual arbitration, where the issue is typically framed as admissibility rather than jurisdiction, the regolamento route does not apply. Litigators should, accordingly, raise the objection at the first defensive opportunity, argue the “null/inoperative/incapable” test, and channel any adverse jurisdictional ruling through Articles 42–43 c.p.c., keeping in view the limited judicial interaction envisaged by Articles 818-bis/ter. By contrast, pre-reform practice was less uniform: the arbitration objection could be treated as an inadmissibility or priority issue, with broader room for interim judicial handling and—with ritual arbitration—access to the Supreme Court via competence regulation under Articles 42–43 c.p.c. The current text centralises the test and rationalises remedies, reducing incentives to plead around the clause. This statutory clarification eliminates prior ambiguities and aligns Italian law with international trends, notably the UNCITRAL Model Law47 and the jurisprudence of Germany, Austria, and Switzerland48.
One critical clarification concerns the applicable perspective (lex fori). Article 819-ter governs the procedural handling of the objection by the seised court; it does not, as such, predetermine the substantive law of validity of the clause, which follows the parties’ choice or the relevant conflict rules This lex fori reading—especially in cross-border cases with a foreign governing law or seat—has been debated in Italian scholarship49 on the ground that an overly rigid forum lens may disconnect the effects of the arbitration agreement from the parties’ regulatory choices.50.
The Court of Milan, in its order of 18 January 2025, adopts a strong lex fori lens at the procedural stage, stating that the assessment of an arbitration clause’s validity—including tacit or implied clauses—falls under Italian procedural law, regardless of the substantive law chosen by the parties. This first-instance approach has fuelled debate on whether Article 819-ter risks constraining the international reach of arbitration agreements in complex cross-border settings. 51 The controversy reflects the broader tension between formalism and flexibility in multi-jurisdictional disputes.
Under Italian law, there is no general lis pendens between courts and arbitral tribunals; lis pendens is a court-to-court device. The interface is instead governed by Article 819-ter c.p.c.:
- the arbitration objection (exceptio compromissi) must be raised with the first defence, failing which the state court proceeds;
- while an arbitration is pending, courts may not entertain a standalone action having the arbitration agreement as its sole object (the “negative effect”), though they may address the clause incidentally when ruling on the objection; and
- decisions on the clause rendered in either forum are capable of producing res judicata effects and thus preclude inconsistent outcomes.
It follows that, if a state court nonetheless proceeds despite a valid arbitration clause, a subsequent award remains in principle recognisable and enforceable; however, where a prior final court judgment exists and is produced in the arbitration, an award that contradicts it would be vulnerable to annulment for violation of res judicata under Article 829(8) c.p.c. This framework coordinates parallel tracks without transposing lis pendens to the court–arbitration relationship and relies on ordinary preclusion rules to resolve conflicts between fora 52.
Nor does the system envisage any automatic “file transfer” from the court to the arbitral institution. When a state court declines jurisdiction in favour of arbitration (or vice-versa), the party must take a fresh procedural step before the proper forum within a peremptory three-month period; the clock generally runs from the decision’s finality. From court to arbitration, the claimant must commence the arbitration pursuant to Article 810 c.p.c. (e.g., by appointing its arbitrator or filing the institutional Request), ); from arbitration to court, a new claim must be filed before the competent judge.53. If the new proceeding is timely started, the substantive and pendency effects of the original claim are preserved (e.g., limitation-period effects), and evidence gathered in the first track may be used as persuasive material in the second; procedural preclusions do not carry over. Failure to act within three months results in loss of the retroactive effects. In short, translatio promotes economy without duplicating activities, but it is party-driven (not clerk-driven) and does not entail the court “sending” the statement of claim to the arbitral institution. 54.
In conclusion, Article 819-ter c.p.c. now plays a central role in structuring the interface between courts and arbitral tribunals. By entrenching the jurisdictional nature of the arbitration objection and channelling review to the Supreme Court via regolamento di competenza, the reform promotes procedural economy and predictability. Still, the rigidity of the lex fori model and the marginalisation of transnational considerations may hinder uniform interpretation in cross-border cases. Future developments will hinge on the interpretative strategies adopted by courts in harmonising arbitral autonomy with procedural safeguards.
6. Arbitration and EU Law: Recognition, Enforcement, and State Immunity
The relationship between Italian arbitration law and European Union law has grown increasingly complex, particularly in the areas of recognition and enforcement of arbitral awards and state immunity from execution. While Italy remains a party to the 1958 New York Convention and is generally arbitration-friendly, the influence of EU law—most notably the jurisprudence of the Court of Justice of the European Union (CJEU)—has introduced significant structural and normative tensions.
The Brussels I-bis Regulation55 excludes arbitration from its scope (Article 1(2)(d)), yet CJEU case law still shapes the court–arbitration interface. In West Tankers (C-185/07)56 the Court barred anti-suit injunctions issued by Member State courts to restrain proceedings in another Member State, even where a valid arbitration agreement exists.
After the Recast, Recital 12 sought to “ring-fence” arbitration, and in Gazprom (C-536/13) the CJEU clarified that anti-suit orders made by an arbitral tribunal fall outside Brussels I-bis and may be taken into account or enforced by national courts under their own law; nevertheless, court-issued anti-suit relief remains unavailable within the EU. As to scholarly reception, Italian commentary has been predominantly critical (emphasising the risk to the effet utile of the New York Convention),57, whereas the broader EU literature is more divided—some authors defend the outcome as a corollary of mutual trust, others share the Italian critique58. Practically, parties can no longer rely on court anti-suit injunctions to police the arbitration agreement and must instead
- raise the arbitration objection promptly (Article 819-ter c.p.c.) to obtain a stay,
- consider seeking tribunal-issued anti-suit relief where available and then pursue recognition/enforcement domestically, and
- manage the residual risk of parallel proceedings through swift commencement of arbitration and careful coordination of procedural steps.
Further uncertainty has emerged from the case law of the Court of Justice of the European Union (CJEU)—notably Achmea (C-284/16),59, PL Holdings (C-109/20),60, and Komstroy (C-741/19)61—which collectively preclude intra-EU investor–state arbitration under BITs and the Energy Charter Treaty. The CJEU’s rationale is that such mechanisms remove disputes from the EU judicial system and thus threaten the primacy and autonomy of EU law. These rulings target investment arbitration; they do not govern commercial arbitration between private parties. As things stand, there is no settled Italian case law refusing recognition/enforcement of intra-EU commercial awards on Achmea/Komstroy grounds.
By contrast, Italian practice has had to factor EU-law constraints in the investment context. In the Micula litigation62, after the CJEU’s judgment of 25 January 2022 in C-638/19 P (Micula II), domestic courts have been asked to consider EU State-aid objections at the enforcement stage of an ICSID award. This shows a readiness to subject enforcement to EU-law compatibility review in investment cases, without extending that logic to purely commercial awards.
A second—and equally delicate—European constraint concerns State immunity, which operates on two planes that must be kept distinct:
- immunity from jurisdiction (cognition), and
- immunity from execution (post-judgment measures).
Although the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004)63 is not yet in force internationally, Italian courts and scholarship treat several of its provisions as persuasive evidence of customary international law when delimiting execution immunity. Italy acceded in 2013, and the Supreme Court has relied on Articles 18–19 to frame the general bar on measures of constraint against property used for public functions64.
In Italian practice, execution immunity is applied in a functionally restrictive but stringent way: assets devoted to sovereign/public purposes (e.g., diplomatic or cultural premises) are unavailable to enforcement, whereas measures may be conceivable only for property used for commercial purposes and subject to conditions recognised by international practice.
Recent case law65 crystallises those conditions: the Italian Supreme Court has reaffirmed that enforcement measures against a foreign State’s property are inadmissible unless two cumulative requirements are met—
- an express waiver of immunity and
- a specific nexus between the targeted asset and the subject matter of the dispute.
This approach is consistent with the European Court of Human Rights’ line (notably Ališić v. Bosnia and Herzegovina66), which accepts limitations on enforcement grounded in generally recognised immunity rules.67.
Illustrative Italian case law68 and recent legislative69 carve-outs further narrow the field of attachable State assets. For award creditors, the practical upshot is that only specifically identified, commercially used assets—backed, where required, by an express waiver—are realistically reachable in Italy, whereas property devoted to public functions and categories shielded by statute remain off-limits.
Against this background, the open question is whether the alignment between EU law, international obligations and Italian procedural autonomy still yields a stable framework for recognition and enforcement. The proliferation of public-policy exceptions, the expansive reading of State-aid constraints and the evolving doctrine of EU judicial primacy all press for a calibrated reassessment that reconciles mutual trust with legal certainty and arbitral finality, avoiding fragmented enforcement within the internal market.70.
In conclusion, while Italian law remains formally open to international arbitration, the practical enforceability of awards is increasingly shaped by supranational constraints. The challenge for the Italian legal system will be to preserve its traditional openness to arbitration while complying with its obligations under EU law, the ECHR, and multilateral state immunity regimes.71 This balancing exercise will determine whether Italy continues to be perceived as a reliable seat and forum for arbitration within a complex, multilevel legal order.
7. Concluding Remarks and Future Perspectives
Italy’s 2022 reform has consolidated a court-supported, rather than self-standing, model of arbitration. It broadens the tribunal’s toolbox through the opt-in regime for interim measures (Article 818 c.p.c.), frames a narrow, single-tier review and a judicial enforcement gateway (Arts 818-bis/ter c.p.c.), and treats the exceptio compromissi as a jurisdictional matter with a defined route of review to the Supreme Court via regolamento di competenza (Article 819-ter c.p.c.). The design is coherent but its performance remains conditional: the promised gains in speed and certainty materialise where parties draft express clauses conferring precautionary powers (or incorporate suitable institutional rules), tribunals are constituted promptly, and courts apply 818-bis/ter in a measured way that avoids duplication.
The next step is not another abstract overhaul but targeted refinements where frictions persist. The pre-constitution window for urgent protection should be managed by pairing court availability with predictable emergency-arbitrator pathways and basic notice protocols to avoid overlapping orders. Corporate arbitration will benefit from standardised parity language and model wording that expressly extends interim powers to the suspension of resolutions, reducing litigation over timing and incorporations by reference. Practice guidance around 819-ter can clarify, in concrete terms, the timing of the objection and forfeiture, the negative effect (no stand-alone court actions on the clause while an arbitration is pending), and the coordination of res judicata across parallel tracks. On enforcement of arbitral interim measures under 818-ter, short practice directions can protect third parties and public registers without adding avoidable formalism.
European constraints should be integrated into this operational posture. Within the Union, the unavailability of court anti-suit injunctions after West Tankers makes it essential to police the arbitration agreement through a prompt exceptio and swift commencement; EU public policy, including competition law, calibrates set-aside and recognition; sanctions and State-aid screening, together with execution immunity and statutory carve-outs, define realistic horizons for satisfaction. Predictable application of these screens by courts of appeal would reduce forum shopping and improve planning in commercial and corporate cases.
Institutions and academia can accelerate convergence from the ground up. Model clauses that make the opt-in unambiguous and secure parity in appointments, short practice notes on Arts 818-bis/ter and 819-ter, and anonymised metrics on time to measure, review outcomes and enforcement would allow users and courts to verify that the system is delivering what it promises. Judicial training focused on narrow appellate review of arbitral interim measures and consistent use of the regolamento route for jurisdictional rulings would curb interlocutory detours.
In the end, the decisive variable is adjudicative culture. Arbitrators and judges should prefer proportionality, coordination and deference on the merits—reserving intervention for due-process and public-policy thresholds—so that Italy’s court-supported architecture yields what users value most: speed, enforceability and legal certainty. Read this way, the Cartabia Reform is not an endpoint but a platform from which Italy can move from compliance to leadership in Europe’s arbitral order.
8. List of References
Journal Articles and Papers
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The full text of the article is published in Journal of international Arbitration Volume 42, Issue 6 (2025) pp. 737 – 758
Author: Francesco Tedioli
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