Challenge of Arbitrators - Article 19 - Chamber of Arbitration of Milan Rules: A Commentary

CLAUDIO CONSOLO is Professor of Civil Procedural Law. He lectured at Trento (1986-1991), Catholic University of Milan (1992-1996), Verona (1997-1998), Padova (since 1998), Innsbruck (1998-2003), Bocconi University (2005-2008). He is author of several books and essays and a member of the scientific committee of numerous law reviews. He is editor of the Commentary on the Code of Civil Procedure (4th ed., Ipsoa, 2010) and co-editor of the Commentary on national and international Arbitration Law (Cedam, 2010). He has been a member of the Arbitral Council of Milan. He practices as a lawyer, with offices in Milan and Verona.

MARCELLO STELLA is a Lawyer at Studio Prof. Avv. Claudio Consolo in Milan. He holds a Ph. D. in Civil Procedural Law from the University of Milan. He graduated from Bocconi University (2007; magna cum laude) and attended the University of Warwick (2005) and the Freie Universität Berlin (2007).

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Originally from Chamber of Arbitration of Milan Rules: A Commentary

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ARTICLE 19 – CHALLENGE OF ARBITRATORS

1. Each party may file a reasoned challenge against an arbitrator on any ground that casts a doubt on his/her independence or impartiality.

2. The challenge shall be filed with the Secretariat within ten days from receipt of the statement of independence or from the date when the party becomes aware of the ground for challenge.

3. The Secretariat shall transmit the challenge to the arbitrators and the other parties and shall set a time limit for filing comments, if any.

1. Summary of Contents

Article 19 of the Rules sets the standard for challenging arbitrators and addresses the related process.

2. Foundation and grounds for challenge

2.1. Arbitrators, albeit privately appointed, perform a jurisdictional function. This widely accepted principle is expressly recognised by Italian law. According to Art. 824-bis of the civil procedure code, the award has the same effects of a state court decision, provided it is rendered in the course of a ritual arbitration (‘arbitrato rituale’). Whereas the abovesaid identity of function underlies the general statement according to which ‘the right to an impartial and independent judge also exists in arbitration’,1 the different institutional position occupied by the arbitrator and by the state judge respectively entails relevant consequences on the remedy of challenge.

Table of Contents:

1. Summary of Contents
2. Foundation and grounds for challenge
3. Parties’ Will, Applicable Law, Concurrent Remedies
4. Standing
5. Filing of a Challenge
6. Time Limits
7. Proceeding
8. Burden of Proof
9. Deciding Body
10. Content of the Decision
11. Costs