Translatio iudicii between arbitration and State Courts in Italy: a critical perspective

During my presentation I discussed the conflict of jurisdiction between arbitration and state court proceedings and the consequent matter of translatio iudicii in Italy. I preliminarily outlined a brief overview of the issue of the judicial or private nature of arbitration in Italy. I then described recent case law restating the so called "jurisdictional" approach. In particular, the Italian Constitutional Court, by decision n. 223 of 2013, held that a translatio iudicii between arbitration and state court proceedings is admissible under the Italian legal system. The consequence is that, following a dismissal of the claim by a state court or an arbitral tribunal due to, respectively, the existence or inexistence of an arbitration agreement, the claimant is not prevented from filing the claim before the competent body, without incurring in any time limitation or forfeiture. As the translatio iudcii between arbitration and state courts is not provided by the Italian code of civil procedure, I presented some matters that currently need to be addressed by a systematic analysis of the relevant provisions introduced by the new Arbitration Law, along with a critical assessment of the principles and rules, as interpreted over the years by scholars and case law. To this respect, I made reference to: a) the effect of interim measures granted before the beginning of the dispute; b) the relevance of the evidence filed in the first proceedings; c) the relevance of the procedural time limits, provided for judicial proceedings, in the proceedings transferred before an arbitral tribunal after a state court declares it lacks jurisdiction; d) in case the translatio iudicii operates from judicial proceedings to arbitration, the admissibility in arbitration of a party who joined the first proceedings, even though it is not a signatory of the arbitration agreement; e) in case the translatio iudicii operates from judicial proceedings to arbitration, the relevance of a counterclaim brought by the defendant sued before the state court, if that claim falls outside the scope of the arbitration agreement. I concluded that the above open issues would appear to still be the relevant in the Italian legal system and I discussed the matter with scholars and professionals coming from different legal systems.