Seat of the Arbitration - Article 4 - Chamber of Arbitration of Milan Rules: A Commentary

CHARLES JARROSSON is a former Member of the Arbitral Council of the Chamber of Arbitration of Milan and is Professor at the University of Paris II Panthéon-Assas where he teaches Arbitration and ADR and manages the post-graduate Master Litigation, Arbitration & ADR. He is also a visiting professor in various foreign universities, especially in Lebanon. He is editor in chief of the Revue de l’arbitrage. As an arbitrator he has a great experience in arbitration proceedings, ad hoc or institutional (ICC, ICSID, Chamber of Arbitration of Milan…) held in Italian, English and French. He also has experiences in mediation and other ADRs.

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Originally from Chamber of Arbitration of Milan Rules: A Commentary

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ARTICLE 4 – SEAT OF THE ARBITRATION

1. The parties shall fix the seat of the arbitration, in Italy or abroad, in their arbitration agreement.
2. In the absence of any agreement as to the seat, the seat of the arbitration shall be Milan.
3. Notwithstanding the provision in paragraph 2, the Arbitral Council may fix the seat of the arbitration elsewhere, taking into account the requests of the parties and any other circumstance.
4. The Arbitral Tribunal may determine that hearings or other procedural acts take place in a location other than the seat.

1. Seat of arbitration and place of arbitration

1.1. The expression “place of arbitration” (see ICC Rules, Article 18) is used alternately with that of “seat of the arbitration” (Rules commented herein, Article 4). These expressions may be construed differently, although one must consider, in principle, that where the parties refer to a place (situs), they intend to designate a seat, or a place, with the meaning that is explained hereafter. The place of arbitration is not only geographical, i.e. the place in which the arbitration will be physically conducted: e.g. Milan, Paris or Beirut; but may also be construed in a legal sense, as being the place to which the arbitration is considered to be attached and where the award will be considered to have been rendered, with all the attached implications. Among these implications, the necessary compliance with the local mandatory rules of procedure, the types of appeal open against the award, the possibility of requesting the help of a State judge in conducting the arbitration proceedings…1 Thus, the English Arbitration Act (Section 3) refers to the “seat of arbitration” whilst specifying that this means the “juridical seat of the arbitration designated”, whereas the use of the expression “lorsque l’arbitrage se déroule en France” (where the arbitration takes place in France) by Article 1505-1° of the French Code of Civil Procedure refers to the seat of arbitration.2 Italian law uses the term “sede” (see Article 816 of the Italian Code of Civil Procedure).

Table of Contents:

1. Seat of arbitration and place of arbitration.
2. Principle of free choice of the seat of arbitration by the parties.
3. The choice of Milan by the Rules of arbitration where the parties have made no specific provision.
4. Special powers of the Arbitral Council.
5. Implementation with respect to a transfer of seat.
6. The possibilityof conducting arbitration operations elsewhere than at the seat of arbitration.