La ricusazione dell’arbitro: motivi e procedimento

The system of challenging an arbitrator is aimed at the protection of the parties’ fundamental right to an impartial and independent tribunal. The general framework for the grounds for challenging arbitrators has been expressly set out under Article 815 Italian Code of Civil Procedure. Based on doctrine and jurisprudence, the A. examines the grounds for challenge of an arbitrator, one by one, and how they are applied. After that, the Challenge Procedure is explained in its phases: The request, the timing of challenge, the competent judge and the effects on arbitration. In Italy, as a rule, the challenge shall be made by petition to the president of the tribunal, in whose district the arbitration has its seat. However, in the case of administered, or “institutional”, arbitration, it is necessary to refer to the Arbitration Rules of the Institution chosen by the parties in the arbitration agreement in order to identify who will decide the challenge of the arbitrator (for example, Arbitral Council). In this case, it is necessary to verify whether the administered challenge replaces the judicial challenge (as it is preferable) or if it is added to it, instead. Moreover, Institutional Arbitration Rules may provide for further cases of replacement or challenge of the arbitrators in addition to those provided by the law. The research analyzes the final order that decides regarding the challenge and the numerous problems it poses, in particular, notwithstanding the art. 815 Italian Code of Civil Procedure provides “The president shall decide by an order which is not subject to recourse”, the questions are whether it is contestable or not and who is authorized to propose recourse (particular attention is given to the delicate position of the disqualified arbitrator). Finally, the A. considers the scope of the application of Art. 815 Italian Code of Civil Procedure and concludes for its applicability also to the arbitration “irrituale” (Art. 808 ter Italian Code of Civil Procedure)