Arbitration and statute of limitations

The First Civil Chamber of the Supreme Court requested the First President of the Court to transfer to the Supreme Court sitting en banc a case concerning the relationship between arbitration and the limitation period provided for by a specific statue of limitations. The dispute concerned Article 2527(3) of the Italian Civil Code, which states that the member excluded from a cooperative company is entitled to challenge the relevant resolution within 30 days of its communication. The current rule in force is Article 2533(3) of the Italian Civil Code, which extended the limitation period to sixty days, the same limitation period provided for by Article 2287(2) of the Italian Civil Code with respect to partnerships. The Italian full text of the order no. 20101 of 7 October 2015 is available here.

A remarkable line of cases of the Supreme Court considers that the above mentioned limitation period does not apply in arbitration proceedings (in particular, taking into account the timing required for the constitution of the Arbitral Tribunal). Therefore, the referral of any dispute (including those concerning an exclusion resolution) to an Arbitral Tribunal, by virtue of an arbitration clause stipulated in the Articles of association, would imply that the time-limit is lifted (in this respect, the order at hand refers to several precedents, such as decision no. 2084 of 30 March 1984 of the I Civil Chamber of the Supreme Court, decision no. 2657 of 7 March 1995 of the I Civil Chamber of the Supreme Court and decision no. 11436 of 12 November 1998 of the I Civil Chamber of the Supreme Court).

According to the Court this line of cases should be thoughtfully examined.

First, it is difficult to justify that the statute of limitation applies (or does not apply), depending on the method chosen by the parties to settle their disputes (an Arbitral Tribunal instead of the Court).

Moreover, the Court considered that the jurisdictional nature of arbitration proceedings must be taken into account.

Indeed, the request for arbitration tolls the statute of limitations, as per Article 2943(4) of the Italian Civil Code, amended by article 25 of Law no. 25 of 5 January 1994. Furthermore, it also has the effect of suspending the period of limitations, which is a typical effect of judicial proceedings, according to Article 2945(4) of the Italian Civil Code.

To this respect, the Supreme Court also took into account a decision of the Constitutional Court (decision no. 223 of 19 July 2013, Italian text available here), which ruled that Article 819/ter(2) of the Italian Code of Civil Procedure is constitutionally unlawful. More specifically, the Constitutional Court ruled that it was unlawful to exclude the application of Article 50 of the Italian Code of Civil Procedure to the relationship between arbitration and judicial proceedings (the so-called “translatio iudicii”). In other words, the Constitutional Court ruled that, as to their effects, there is no difference between a claim filed in arbitration and a claim filed in Court.

The Supreme Court concluded that the short time-limit provided for by Article 2527(3) (now 2533(3) and 2287(2) of the Italian Civil Code) could also apply in arbitration proceedings. Indeed, it is wrong to regard the constitution of the Arbitral Tribunal as the activity to be timely performed in order to avoid the time limitation. This activity, in fact, is the service on the other side of the request for arbitration.

A further issue, which was not addressed by the Supreme Court in the ruling at hand, is whether it is possible to issue interim measures in favour of the excluded partner before the constitution of the Arbitral Tribunal. In my view, the Court is allowed to issue interim measures, as in any case of challenge of a resolution. Among the several rulings concerning this topic, the decision of 28 February 2014 of the Court of first instance of Milan (Italian text available here in the website of Giurisprudenza delle Imprese) is particularly interesting. This ruling rejected the application by analogy to limited liability companies of the time-limit set in Articles 2287 and 2544 of the Italian Civil Code. Conversely, the Court of first instance of Milan stated that the only applicable limitation period is that in article 2479/ter(1) of the Italian Civil Code. This limitation period is 90 days of the registration of the resolution in the company’s books. However, several Italian Courts do not support this view.

Leave a Reply

Your email address will not be published.

 

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Browsing this website you accept the use of cookies. more info

PRIVACY POLICY
The following information is provided in accordance with Article 13 of Regulation (EU) 679/2018 ("GDPR"), to users who access the services available at https://www.arbitratoinitalia.it (“Site”). When consulting the Site, information concerning users may be collected that constitutes personal data under the Privacy Code. This information is provided exclusively for the Site and does not affect any other web sites accessible by the user through links provided on the same.
DATA CONTROLLER AND DATA PROCESSOR
Data Controller (Titolare del trattamento) is Arbitration in Italy Ltd, a company incorporated under English law, registered at No. 12459814, with registered office in 61 Bridge Street, Kington, HR5 3DJ, UK ("Company"). Data Processor (Responsabile del trattamento) is the Company's present legal representative.
PLACE OF DATA PROCESSING
The processing of data related to the web services on this Site is carried out at the premises of the Company set out above and is performed by internal personnel duly appointed as Persons in charge of processing (Incaricati del trattamento).
TYPES OF DATA PROCESSED
Surfing Data
During the normal operation, the computer systems and software procedures used to operate the Site acquire some personal data whose transmission is implicit in the communication protocols of the Internet. This information is not collected to be associated with identified persons, but by its very nature could, through processing and association with data held by third parties, allow identification of users. This category of data includes IP addresses or domain names of computers used by users who connect to the Site, URI (Uniform Resource Identifier) of requested resources, the time of the request, the method used to submit the request to the server, the size of the file obtained in reply, the numerical code indicating the status of the response from the server (successful, error, etc.) and other parameters regarding the operating system and computer environment. These data are used only to obtain statistical information about the site and its use and to check its correct functioning and are deleted immediately after processing. The data could be used to ascertain responsibility in the event of possible computer crimes committed against the Site: except in this case, the data on web contacts are kept for a maximum period of seven days.
Data provided voluntarily by the user
The sending of optional, explicit and voluntary e-mails to addresses shown on this Site, and the filling in of forms specifically provided involve the subsequent acquisition of the sender’s e-mail address and the additional personal data provided in the electronic communication, together with the sender/user’s data necessary to respond to requests as well as to provide the service. Specific summary information will be provided in relation to specific services.
COOKIES
Cookies are data files which some websites, while visited, can send to the user with the scope of tracing its path inside the site and collect data in anonymous form, in order to enhance the offer and the use of the site. The Company does not use information technology for the direct acquisition of personal data by which the user can be identified. Cookies for the transmission of personal information or systems for the tracing of users are not used. The Company uses so-called technical cookies only with the scope of rendering browsing the Site possible and to make it possible for the user to use its functions. Some technical cookies are necessary in order to optimize the use and have the user accredit itself with the Site, for example in order to enter a restricted area (so-called browser cookie). The browsing cookies are session cookies and are deactivated automatically once the browser is closed. For the installation of these cookies it is not necessary to collect the consent of the user. The Company uses furthermore analytic cookies of thirds parties by which information on the interaction of the visitor with the content of the Site is obtained (most frequently used pages, time of use, etc.) and which thereby provide statistic information which makes it possible to optimize the Site and to enhance its use.
OPTIONAL DISCLOSURE OF DATA
Unless specified for surfing data, the user is free to provide personal information in the application forms or otherwise indicate them in order to request any information packs or other communications. Failure to provide personal information may, however, make it impossible to fulfill the request.
MODALITY OF PROCESSING
Personal data are processed by automated tools for the time necessary to achieve the purposes for which they were collected. Specific security measures have been taken to prevent loss of data, unlawful or incorrect use and unauthorized access.
PURPOSE OF PROCESSING - COMMUNICATION AND DISSEMINATION OF DATA
The personal information provided by users who request dispatch of information packs or rendering of services is used only to provide the service requested and may be disclosed to Company’s employees and consultants, duly appointed as Persons in charge of processing, as well as third parties that render ancillary or instrumental services to the activity of the Company and which are appointed as Data Controllers. There will not be any other communication of data to third parties, except upon request of public authorities. The data collected will not be disseminated.
RIGHTS OF DATA SUBJECTS
Data subjects are entitled, pursuant to Article 12 of the GDPR, to obtain, at any time, confirmation of the existence of the data and to know their origin, verify their accuracy or request their integration, updating or correction. Pursuant to this article data subjects shall have the right to request cancellation, anonymization or blocking of data processed in violation of the law, and in any case, to object on legitimate grounds to their processing. Requests should be sent to the Data Processor, at the above address or by email to privacy@arbitratoinitalia.it.

Close