KluwerArbitration
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Publication
Journal of International
Arbitration
Jurisdiction
Italy
Bibliographic reference
Pietro Ferrario, 'Challenge to
Arbitrators: Where a Counsel
and an Arbitrator Share the
Same Office—The Italian
Perspective', Journal of
International Arbitration,
(© Kluwer Law International;
Kluwer Law International
2010, Volume 27 Issue 4) pp.
421 - 426
P 421 party because of past or current personal or professional links to any of the parties or of any
P 422 economic interest in the dispute, is clear. However, the issue discussed in this article is not a
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Challenge to Arbitrators: Where a Counsel and an
Arbitrator Share the Same Office—The Italian Perspective
Pietro Ferrario
(★)
Abstract
Arbitrators have the duty to be and remain impartial and independent of the parties. Impartiality
requires that an arbitrator neither favors one party nor is predisposed as to the question in
dispute. Independence requires that there should be no actual or past dependent relationship
with the parties that may, or at least may appear to, affect the arbitrator's freedom of judgment.
However, it is not just the linking of arbitrators to any of the parties that can undermine their
impartiality and independence, but also a link to one of the parties' counsels. In particular, this
article deals, from the Italian perspective, with the issue of whether a counsel and an arbitrator
who share the same office may be appointed for the same arbitration proceeding without
disregarding the duty of impartiality and independence of the arbitrator.
I Introduction
This article deals with the issue whether a counsel and an arbitrator who share the same office
may be appointed for the same arbitration proceeding without disregarding the duty of
impartiality and independence of the arbitrator. In other words, the question is whether the
fact that a counsel and an arbitrator share the same office represents an acceptable ground for
the challenge of an arbitrator. In particular, this issue will be analyzed from the Italian
perspective.
II Independence and Impartiality
In performing his task an arbitrator has to be, and must remain, independent and impartial.
Impartiality requires that an arbitrator neither favors one party nor is predisposed as to the
question in dispute. Independence, instead, requires that there should be no actual or past
dependent relationship with the parties that may, or at least may appear to, affect the
arbitrator's freedom of judgment. While impartiality is needed to ensure that justice is done,
independence is needed to ensure that justice is seen to be done. (1)
The duty of an arbitrator to act freely during arbitral proceedings, and without favoring any
link between the arbitrator and any of the parties, but between the arbitrator and one of the
parties' counsels, with whom he shares the same office. This circumstance gives rise to the
question whether such a scenario may lead by itself to a conflict of interest and whether it may
lead to a successful challenge of an arbitrator.
The answers to these questions provided by Italian law and practice are analyzed below.
III The Italian Perspective
A Italian arbitration law
The Italian law provisions governing arbitration are embodied in the Code of Civil Procedure
(CCP). These rules were amended in 2006 by Legislative Decree No. 40.
The provision dealing with the challenge of arbitrators is Article 815. Before the amendment of
the arbitration law, Article 815 referred to Article 51 CCP, which identifies the situations where a
judge has the duty to abstain from judging a case. The new version of Article 815 no longer
refers to Article 51, but expressly provides a list of circumstances that may entitle a party to
challenge an arbitrator. These circumstances are basically the same as those included in
Article 51.
The general principle underlying Article 815 is that an arbitrator should not have any interest in
the dispute or any close, usual or continuous relationship with one of the parties, its legal
representative or its lawyers. Furthermore, the arbitrator can be challenged if he does not have
the qualifications expressly agreed by the parties, or if he was the lawyer of one of the parties
in a previous stage of the case, or was involved in the dispute as a witness.
None of the circumstances included in the new version of Article 815 provides for the case
where a counsel of a party and an arbitrator are members of the same law firm or share the
same office.
B Arbitral Rules of the Chamber of Arbitration of Milan and Italian Association for
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 Arbitration
In addition to the Code of Civil Procedure, the Arbitral Rules of the Chamber of Arbitration of
Milan (2) and of the Italian Association for Arbitration (3) contain provisions regarding the duty
of impartiality and independence of arbitrators and their challenge.
As regards the Arbitral Rules of the Chamber of Arbitration of Milan, Article 18 requires
P 422 arbitrators to submit a statement of independence indicating the following circumstances
P 423 (with the specification of the period of time and duration):
(1) any relationship with the parties, their counsels or any other person involved in the
arbitration, which may affect the arbitrator's impartiality and independence;
(2) any personal or economic interest, either direct or indirect, related to the subject matter
of the dispute;
(3) any prejudice or reservation as to the subject matter of the dispute.
Similarly to Article 815 CCP, Article 18 does not make a specific reference to the case where an
arbitrator and a party's counsel share the same office. As a result, it seems that arbitrators
have discretion as to whether to disclose or not to disclose such circumstance.
Article 19 of the Arbitral Rules of the Chamber of Arbitration of Milan provides that each party
may challenge an arbitrator if grounds exist that cast doubt over the independence or
impartiality of the arbitrator. The Chamber of Arbitration of Milan has also issued a Code of
Ethics which requires arbitrators to be and to remain impartial and independent (Articles 5
and 6) and to submit a written statement of impartiality and independence as provided by the
Arbitral Rules (Article 7).
As regards the Arbitral Rules of the Italian Association for Arbitration, Article 14 requires the
arbitrator to carry out his tasks independently and impartially and provides for a duty of
disclosure of any circumstances which could affect his independence, while Article 15 gives the
parties the power to challenge the arbitrators. Like the Arbitration Rules of the Chamber of
Arbitration of Milan, these rules do not contain any specific provision regarding the
circumstance of an arbitrator and a party's counsel who share the same office.

C Code of Ethics
Despite the fact that there is no legal provision dealing specifically with the case where an
arbitrator shares the same office as a party's counsel, the Code of Ethics for lawyers (4) issued
by the Italian Bar Association contains an express provision on this point. Article 55 specifically
provides, among other things, that a lawyer is not entitled to accept the appointment as an
arbitrator if the counsel of one of the parties has a professional relationship with him or shares
the same premises. This article also provides that a lawyer must disclose to the parties any
circumstance and relationship with their counsels that can affect his independence in order to
obtain the consent of the parties to his appointment as an arbitrator.

D Case law
P 423 As mentioned above, apart from the Code of Ethics for lawyers, neither the law nor the
P 424 arbitration rules contain a specific provision covering the case where an arbitrator and a
party's counsel share the same office. The solutions to this issue adopted in Italian case law
are analyzed below.
1 Court of First Instance of Busto Arsizio, July 18, 2000 (5)
In this case an arbitrator was challenged on the ground that he shared an office with one of the
parties' counsels. The court rejected the challenge, holding that, since the party's counsel and
the arbitrator shared only an office, but not their activities, there was no incompatibility
between them that could justify the challenge. The court therefore considered that in this case
the impartiality of the arbitrator was not undermined by the sharing of the same office.
2 Corte di Cassazione (Italian Supreme Court), Sez. I, n. 17192, August 28, 2004 (6)
In this case, the chairman of the arbitration tribunal shared the same office as the counsels of
one of the parties. He did not refuse the appointment and, when the arbitration tribunal issued
the award, the chairman was challenged.
The Italian Supreme Court, dealing with the challenge of the award, stated that the fact that a
party's counsel and an arbitrator shared the same law firm did not disqualify the latter. The
court maintained that additional circumstances were required, for example, that the counsel
and arbitrator shared clients, work or profit. In other words, a professional or financial
connection between the activities of the counsel and arbitrator was needed since the mere
sharing of the office itself was not enough to disqualify an arbitrator. In this case, these
additional circumstances were not present and the Supreme Court therefore affirmed the
decision of the Court of Appeal of Rome which had rejected the challenge.
Like the Court of First Instance of Busto Arsizio, the Supreme Court did not adopt a strict
approach in deciding whether the sharing of the office was a sufficient ground to challenge the
arbitrator. However, it is important to underline that, unlike the previous case, the Supreme
Court had to deal with the challenge of an award and not just with the challenge of an

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 arbitrator. This was probably one of the reasons for the adoption of a flexible approach. In
practice, the consequences of a successful challenge of the award would have been very
serious, in particular in relation to the costs and duration of the arbitration proceeding.
3 Court of First Instance of Genova, May 4, 2006 (7)
P 424 Another relevant decision regarding the issue in question was issued by the Court of First
P 425 Instance of Genova, which departed from the approach taken in the two previous judgments.
In this case, the claimant filed a challenge against the arbitrator appointed by the other party
on the ground that the arbitrator was a lawyer at the same law firm where the counsel of the
appointing party worked. The claimant alleged that the arbitrator and the counsel practiced at
the same premises and that their headed paper showed the same fax number.
The court admitted the challenge, noting that the counsel practiced in the premises due to his
grandfather's friendship with the arbitrator's father and that the counsel was trained at the
arbitrator's father's firm. The court therefore held that, even if the counsel and the arbitrator
were not associated, they had been practicing for a long time in the same building and a close
relationship between the two could be inferred. According to the court, this relationship would
have jeopardized the arbitrator's independence and affected his impartiality.
The above decisions did not apply the current legal provisions, since the arbitration request
was filed before the new Italian arbitration law came into force. As discussed above, the
previous Article 815 of the Italian CCP referred to Article 51 of the same Code, and the provision
lists the situations where a judge has the duty to abstain from judging a case. However, these
cases remain important and relevant in relation to the new Article 815, since the circumstances
listed in Article 51 (referred to in the above-mentioned decisions) are basically the same as
those included in the new version of Article 815.

IV Conclusion
The issue as to whether a counsel and an arbitrator who share the same office may be
appointed for the same arbitration proceeding without disregarding the duty of impartiality
and independence of the arbitrator is resolved neither by the new Italian arbitration law nor
by the arbitration rules examined above. In particular, with regard to Italian arbitration law, it
was explained that the new version of Article 815 provides a list of circumstances entitling a
party to challenge an arbitrator which does not expressly include this issue.
If it is true that the wording of Article 815 is broad enough to include any serious situation
undermining the independence and impartiality of an arbitrator, it is also true that the
circumstances provided by this provision are substantially the same as those listed by Article
51 of the Italian CCP, that is, a provision that has been in the same terms since 1942. As a
consequence, the circumstances listed in the new Article 815 do not reflect nor take into
account the evolution and development of personal and professional relationships in a
modern society and, on the contrary, appear to be out of date. Therefore, a further amendment
of Article 815 would seem to be necessary and desirable.
At present, the only provision which addresses the question whether an arbitrator and a party's
counsel who share the same office can be appointed in the same proceeding is Article 55 of the
Code of Ethics for lawyers. The answer it gives, as set out above, is negative.
P 425 With regard to the case law, as explained above, the courts have adopted different
P 426 approaches. Moreover, it is important to bear in mind, as previously mentioned, that the
case before the Italian Supreme Court was different from the other two as it involved the
challenge of an award and not just the challenge of an arbitrator, a circumstance that probably
influenced the judgment of the Court. In the other two decisions, which dealt with the challenge
of an arbitrator, the courts adopted contradictory approaches in relation to the issue analyzed
in this article.
In light of the above, future decisions of the courts will play a major role in shedding light on
the question of whether an arbitrator and a party's counsel who share an office may be
P 426 appointed in the same proceeding without undermining the impartiality and independence of
the arbitrator.

References
★) Pietro Ferrario: Degree in Law from Università Bocconi of Milan (2003); admitted to the Bar
Association of Milan (2006); LL.M. in International Business Law, Queen Mary University of
London (2008). See Pietro Ferrario, The Group of Companies Doctrine in International
Commercial Arbitration: Is There Any Reason for This Doctrine to Exist?, 26 J. Int'l Arb. 647
(2009).
1) J.D.M. Lew, L. Mistelis & S.M. Kroll, Comparative International Commercial Arbitration 258,
261 (2003).
2) The new Rules of the Chamber of Arbitration of Milan entered into force on Jan. 1, 2010.
3) Regolamento di Arbitrato A.I.A. 2008.
4) The Code of Ethics was approved in 1997 and last modified in June 2008.
5) Giur. merito, 2002, 731.

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 6) Giustizia Civile, 2005, I 3049.
7) Foro Italiano, 2006, No. 9, 2559.

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

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