Corporate arbitration and interim measures

The Court of first instance of Milan in a recent order of 22 December 2015 (Italian text available here) deals with the issue of the relationship between corporate arbitration and the residual jurisdiction of the Courts to issue interim measures. This ruling is in line with the settled case law of the Court of Milan (as well as of several other Italian Courts).

The case in which such order was issued may be summarised as follows.

A quotaholder of a limited liability company challenged some company’s resolutions (increase of corporate capital and change in corporate scope of activities). To this purpose, he commenced arbitration proceedings, pursuant to Article 35 of the company’s Articles of association.

Pending the appointment of the Arbitral Tribunal, the claimant requested the Court to order the stay of the challenged resolutions, pursuant to article 2378 of the Italian Civil Code. This rule refers to limited companies by shares and also applies with regard to limited liability companies pursuant to Article 2479/ter of the Italian Civil Code.

Despite acknowledging that the challenge of the company’s resolutions had to be settled by an Arbitral Tribunal, pursuant to the arbitration clause stipulated in the Articles of association, the Court of first instance of Milan ruled that it had jurisdiction to issue interim measures. Such decision is in line with the settled case law, whereby “the jurisdiction of the Arbitral Tribunal, to order the stay of a challenged resolution of the general meeting, only subsists after the appointment of the Tribunal. On the contrary, the residual jurisdiction of the Court to issue interim measures subsists if such measures are requested before the appointment of the Tribunal. The aim is to ensure the constitutional right of defense; right of which the request for interim measures is an integral part during all the phases of the dispute and arbitration proceedings.

The orders of the Court of first instance of Milan of 28 February 2014 (Italian text available here, in the website of Giurisprudenza delle Imprese) and 7 November 2013 (Italian text available here, in the website of Giurisprudenza delle Imprese) are precedents sustaining this position. The latter ruling has clarified that “article 35(5) of Legislative Decree no. 5/2003 differs from the general provision of Article 669/quinquies of the Italian Code of Civil Procedure, since it introduces a diachronic division of the jurisdiction to order the stay of a challenged resolution. According to this provision, as a general rule, the jurisdiction rests with the Arbitral Tribunal if it has been already appointed. Otherwise, the residual jurisdiction rests with the Courts, in order to guarantee the right of defense during all the phases of arbitration proceedings.

Although it does not concern the relationship between interim jurisdiction of the Courts and that of the Arbitral Tribunal, another interesting issue is whether it is possible to order the stay of a challenged resolution. Such order may be issued, even when the resolution has been implemented. The only requirement is that the resolution still has effects on the structure and upon the organisation of the company. Among the many precedents in this issue, I would like to mention the well-grounded order of the Court of first instance of Milan of 4 November 2012 (Italian text available here in the website of Giurisprudenza delle Imprese).

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