On the appeal to procedural orders

A recent decision of the Italian Supreme Court (No. 32996 of 9 November 2022, Italian text available here) provides an opportunity for dealing with the possibility to appeal to a procedural order that only resolved preliminary issues.

This case, submitted to the Supreme Court’s assessment on matter of law, arose from the issuance of an order by which the arbitration panel ruled only on the preliminary requests made by the parties, mostly related to the admission of a tribunal-appointed technical consultant.

On appeal against this arbitration ruling, the Bologna Court of Appeal declared the appeal inadmissible, having denied its alleged nature as an award. According to the Court of Appeal, the contested order did not constitute a partial award, but a simple order not immediately appealable, since it did not even partially decide the dispute on the merits, exclusively ruling on the parties’ preliminary motions.

An appeal was then lodged against the decision of the Bologna Court of Appeal (no. 2287 of 11 September  2018), with two grounds in which the plaintiff alleged violation or false application of Articles 816-bis, 823 and 827 of the Italian Code of Civil Procedure, including that the Court of Appeal has erronously considered the arbitral tribunal’s order a simple non-appealable order, rather than an award deciding the dispute on the merits and thus, immediately appealable.

In declared compliance with its own previous arrest (Italian Supreme Court, 24 July 2014, No. 16963), the Supreme Court reaffirmed the principle that the partial award is immediately appealable (Article 827, para. 3, of the Italian Code of Civil Procedure) only when it defines one or more claims. Conversely, immediate appealability must be excluded when the award has decided preliminary issues on the merits without defining any claim.

According to the Supreme Court, although including considerations supporting the adopted ruling, without compromising the final decision of the dispute, the immediate appealability of the arbitration decision that resolves only preliminary issues must be excluded. In accordance with the Article 816-bis, para. 3, of the Italian Code of Civil Procedure, if the arbitrators do not decide on a non-final award on all issues arising in the proceeding, they provide with a revocable order not subject to filing.

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