Arbitration and tort claims

A recent decision issued by the Court of Milan (No. 1684 of 24 February 2020, Italian text available here) concerns a very interesting topic, that of Arbitral Tribunals jurisdiction over non-contractual claims related to a contract.

I have already examined this  topic in a number of occasions.

In 2016, I commented a decision by the Italian Supreme Court (VI Civil Chamber, decision No. 20673 of 13 October 2016, n. 20673, Italian text available here).  The Supreme Court stated that, in that case, the jurisdiction over a pre-contractual claim related to a contract lied with the State Courts due to the fact, in a nutshell, that Arbitral Tribunals’ jurisdiction over such cases has to be expressly provided for by the arbitration agreement (my comment is available here).

I think that, in light of the said case law of the Italian Supreme Court, Milan Arbitration Chamber modified its model arbitration clause in 2019, when it published its new arbitration rules (which I briefly examined in this post and, in greater detail, on the Spain Arbitration Review).

In August 2019, the Court of first instance of Milan applied the principles laid down by the Italian Supreme Court with respect to the contractual restitutions arising out of the contract termination (I examined the topic in this post).

In September 2019, the topic was addressed by some decisions issued by the Courts of Appeal of Bologna and Catania that stated that Arbitral Tribunals do have jurisdiction over a particular tort claim: that raised under Article 1669 of Italian Civil Code (I examined the issue in this post and an article of mine will be published by the Construction Law Journal).

In January 2020, the Court of Milan issued another decision on the Arbitral Tribunals jurisdiction over tort claims and ruled that Arbitral Tribunals do have jurisdiction (my comment is available here).

The recent case recently heard by the same Court of Milan is very similar.

Indeed, on the one hand, the Court of Milan highlighted the wide scope of the arbitration agreement, whereby all the disputed arising out of the contract and its fulfilment are devolved to arbitration.  On the other hand, the Court (in my opinion, correctly) minimized the scope and consequences of the reserve clause whereby the parties agreed on the proper venue of the disputes before State Courts, stressing that this proper venue only applies if State Courts have mandatory jurisdiction over the relevant disputes (such as, for instance, in case precautionary and/or interim relief is sought).

I hope – and trust – that these well-grounded decisions issued in 2020 by the Court of Milan would commence a new line of cases.

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