The Supreme Court recently ruled on an interesting matter. The case dealt with the consequences of the prohibition to undertake or continue economic transactions with a sovereign State (a State under embargo), with respect to an arbitration clause stipulated in an agreement previously entered into with the embargoed State.
The Italian full text of decision no. 23893 of the Supreme Court sitting en banc of 24 November 2015 is available here.
An arbitration clause stipulates that all the disputes arising out of the agreement may be referred to an Arbitral Tribunal. Is that an optional arbitration, in the sense that the claimant may choose between the Court and the Arbitral Tribunal? Does the jurisdiction exclusively rest with the Arbitral Tribunal? Or is it a void or ineffective arbitration clause?
I already talked about this issue in this article, when analysing an order rendered by the Court of first instance of Milan. Recent rulings of the I Civil Chamber of the Court of Appeal of Bologna (decision no. 1884 of 12 November 2015, Italian text available here) and the VI Civil Chamber of the Supreme Court (decision no. 22039 of 28 October 2015, Italian text available here) have shed light on this issue again.
Decision no. 22008 of 28 October 2015 of the I Civil Chamber of the Supreme Court (Italian text available here) followed the line of cases opposing the so-called “twin-track approach” to corporate arbitration. This judgment ruled that the only arbitration clause that may be stipulated in the Articles of association of an Italian unlisted company is the one pursuant to Article 34 of Legislative Decree no. 5 of 17 January 2003.
Decision no. 22007 of the I Civil Chamber of the Supreme Court (Italian text available here) deals with the issue of the grounds for setting aside an arbitration award delivered in proceedings commenced pursuant to an arbitration clause stipulated before the entry into force of Legislative Decree no. 40 of 2 February 2006.
An arbitration clause stipulated in the preliminary agreement (that is, a kind of agreement to agree, which is enforceable under Italian law) was not included in the final agreement. In any case, the disputes concerning the later have to be referred to the Arbitral Tribunal. This was the ruling of the Court of Appeal of Venice (decision no. 2361 of 12 October 2015 of the I Civil Chamber of the Appeals Court of Venice, Italian text available here).