Two recent rulings of the Italian Supreme Court analysed the relationship between arbitration and insolvency proceedings.
The first ruling (decision no. 13089 of 24 June 2015 of the of the I Civil Chamber of the Supreme Court, Italian text available here) established that “claims against a bankrupt party may not be brought before an Arbitral Tribunal. Indeed, the jurisdiction of the arbitrators is in any case prevented due to the prevailing jurisdiction of the Insolvency Courts on such claims.”
The second ruling is more interesting (decision no. 15200 of 21 July 2015 of the Supreme Court sitting en banc, Italian text available here). This judgment focused on the issue of the relationship between arbitration and insolvency when an arbitration procedure is pending abroad and therefore EC Regulation no. 1346 of 29 May 1999 concerning insolvency proceedings applies.
In its decision no. 10610 of 22 September 2015, the Court of first instance of Milan declared its lack of jurisdiction on the challenge of a resolution of a cooperative company. The Court used a broad construction of the arbitration clause contained in the company’s Articles of association. The Italian full text of the decision is available here.
If an arbitration clause is stipulated in the company’s Articles of association, disputes between a former shareholder and the company, concerning the repayment of a shareholders’ loan, shall be referred to an Arbitral Tribunal. This is, in a nutshell, the rationale of decision no. 18316 of 17 September 2015 of the Third Civil Chamber of the Court of first instance of Rome (the Italian full text is available here).
The Supreme Court confirmed the non arbitrability of disputes concerning the challenge of company’s resolutions approving the financial statements (order no. 17950 of 10 September 2015 of the VI Civil Chamber of the Supreme Court, Italian full text available here).
In its decision no. 17956 of 11 September 2015, the Supreme Court applied for the first time Article 816/septies of the Italian Code of Civil Procedure concerning the arbitrators’ fees. In this decision, the Court examined the scope and conditions of application of the above mentioned provision. The Italian full text of the decision is available here.
Order no. 17283 of 28 August 2015 of the Italian Supreme Court affirmed the jurisdiction of an Arbitral Tribunal on the challenge of certain shareholders’ resolutions, pursuant to the arbitration clause stipulated in the company’s Articles of associations. The clause at hand only referred to the arbitrators “all disputes which may arise between the company and any shareholder or among the shareholders (…) concerning the company’s activities." The Italian full text of the order is available here.