In two near-simultaneous judgments handed down just two days apart, the Rome Court of Appeal (full text available here) and the Florence Court of Appeal (full text available here) addressed whether an arbitration clause providing for international arbitration must be specifically approved in writing under Article 1341(2) of the Italian Civil Code. Both courts reached the same conclusion.
The first decision is that of the Rome Court of Appeal, which on 13 January 2026 dismissed the challenge brought against the presidential decree granting recognition and enforcement in Italy of a foreign arbitral award. The opposing party had raised a number of grounds allegedly precluding recognition: defects in the respondent’s power of attorney, the unlawfulness of the immediate enforceability granted by the decree, infringement of the right of defence and due process in the arbitral proceedings, and breach of public policy and mandatory rules. The Court rejected each of these grounds, upheld the challenged decree, and ordered the opposing party to pay the costs.
The second decision is that of the Florence Court of Appeal, published on 15 January 2026. Unlike the Rome case, the issue here was not the recognition of an award already rendered, but rather the validity of an arbitration clause in favour of a foreign arbitral institution, arising in ordinary appellate proceedings. The appellant had criticised the first-instance judgment for failing to find that the arbitration clause was unfair, arguing that the contract had been drawn up entirely by the counterparty with no opportunity for the appellant to intervene or amend its terms, and that the situation was comparable to a distance contract between a dominant party and a consumer. In the appellant’s submission, the arbitration clause therefore required a separate written approval pursuant to Article 1341 of the Civil Code.
The question common to both decisions is whether an arbitration clause providing for foreign arbitration must be specifically approved in writing under Article 1341(2) of the Civil Code.
It is well established that this provision renders ineffective, unless specifically approved in writing, standard terms that include, among other things, arbitration clauses. The rationale — albeit a debatable one — is to ensure that the weaker party is genuinely aware that it is agreeing to derogate from the ordinary courts’ jurisdiction.
Both appellate courts were faced with the objection that the arbitration clause was invalid for want of the separate written approval, and both rejected it. Their reasoning, however, was not identical.
As noted, the two decisions arose in different procedural settings: the Rome Court of Appeal ruled in the context of exequatur proceedings for a foreign award under Articles 839–840 of the Code of Civil Procedure, whereas the Florence Court of Appeal decided within ordinary appellate proceedings in which the validity of the arbitration clause arose as a preliminary question going to jurisdiction. This difference in procedural context is, however, more formal than substantive: since the issue in both cases was a pure question of law — namely, whether Article 1341(2) of the Civil Code applies to an international arbitration clause — the scope of the court’s review had no bearing on the outcome.
In dismissing the opposing party’s complaints, the Rome Court of Appeal followed an established line of authority from the Italian Supreme Court (Corte di Cassazione), according to which the writing requirement in international arbitration is satisfied where the clause appears in an agreement signed by the parties, with no need for the separate written approval required by Article 1341(2) of the Civil Code.
As the Supreme Court has authoritatively held, in order to assess the validity and effectiveness of an arbitration clause derogating from jurisdiction in favour of foreign arbitrators, the court must first determine which law governs that assessment — that is, whether validity is to be examined under Italian law or the law of another State. The systemic consequence is twofold. First, where the contract is governed by a foreign law — identified by the applicable rules of private international law or by the parties’ own choice — Article 1341(2) of the Civil Code is simply inapplicable, being a provision of Italian domestic law with no universal reach. Secondly, even where Italian law is held to apply, the Supreme Court has confirmed that the separate written approval required by Article 1341 is in any event not necessary for arbitration clauses in contracts with an international dimension.
The Rome Court of Appeal further clarified that the writing requirement for a jurisdiction agreement must be interpreted — in light of Article 17 of the 1968 Brussels Convention, Article 23 of Regulation (EC) No 44/2001, and the case law of the Court of Justice — as also encompassing the parties’ course of dealing, where a relevant usage exists in the sector of international commerce in which they operate, this being treated as a sufficient equivalent to a written agreement signed by both parties.
The Florence Court of Appeal dismissed the appeal through a line of reasoning that was detailed and, in certain respects, complementary to that of its Roman counterpart.
In particular, the Florence court held that, even assuming Italian law were applicable, the separate written approval was in any event unnecessary, ordinary compliance with the writing requirement being sufficient.
The Florence judgment makes a noteworthy contribution insofar as it confronts — and rejects — the appellant’s attempt to characterise the relationship as akin to a distance contract between a dominant party and a consumer, thereby shifting the debate from international arbitration as such to the protection of the weaker party. The rejection of that characterisation confirms that the B2B nature of the relationship and the inclusion of the clause in a contract negotiated between commercial enterprises preclude reliance on the formalistic protections of Article 1341 of the Civil Code.
The two January 2026 judgments do not stand alone in the recent case law. One precedent of particular significance confirms and enriches the picture.
This is a judgment of the Milan Court of Appeal, delivered in August 2022 in proceedings to set aside an arbitral award rendered by the Milan Chamber of Arbitration in a dispute between an Italian agricultural entrepreneur and an American multinational holding a patent over a plant variety. The claimant had argued that the arbitration clause was void because it was contained in a contract allegedly concluded by adhesion and drafted unilaterally by the counterparty, without the separate written approval required by Articles 1341(2) and 1342 of the Civil Code.
The Milan Court of Appeal rejected the challenge on two grounds. First, it held that the contract could not be classified as a contract of adhesion, since it contained provisions specifically referable to the counterparty and had been the subject of negotiation between the parties, as evidenced by an exchange of emails and amendment requests made by the very party now challenging it. Secondly, and with a broader reach, the Court held that “even if one were to treat the arbitration clause in question as falling within the category of standard terms, Article 1341(2) of the Civil Code would in any event be inapplicable because, this being an international award, the provision is overridden by Article II of the New York Convention, which does not require separate approval of the arbitration clause but only that it be in writing”.
The decisions under review cannot be properly understood without considering the legislative developments that have profoundly shaped the formal requirements for arbitration clauses in international arbitration. Two reforms, in particular, mark decisive turning points: Law No 25/1994 and Legislative Decree No 40/2006.
Law No 25/1994 introduced into the Code of Civil Procedure a new Chapter VI of Title VIII, devoted to “international arbitration”, defined by former Article 832 as arbitration in which at least one of the parties was resident or had its effective seat abroad. The introduction of a dedicated regime for international arbitration made it possible to incorporate into domestic law the standard set by the 1958 New York Convention, whose Article II requires only that the arbitration agreement be in writing, without imposing any additional requirement such as separate written approval. Under that regime, as the Milan Court of Appeal recalled, the Supreme Court’s case law was settled in holding that, pursuant to the New York Convention, the writing requirement was satisfied in respect of a foreign arbitration clause where the clause appeared in an agreement signed by the parties, with no need for separate written approval under Article 1341 of the Civil Code.
The legislative landscape changed significantly with Legislative Decree No 40/2006, which formally repealed Chapter VI of Title VIII of the Code of Civil Procedure, thereby abolishing international arbitration as an autonomous procedural category. This repeal raised a crucial question: with the special regime gone, had the more liberal approach to the form of the arbitration clause also disappeared, allowing Article 1341(2) of the Civil Code to reassert itself?
The courts’ answer has consistently been in the negative. As the Milan Court of Appeal persuasively reasoned in its 2022 judgment, the repeal of Chapter VI does not preclude the continued application of the more liberal regime to awards with an international dimension. This rests on two arguments. First, from a harmonisation standpoint, Article II of the New York Convention must be regarded as the governing standard for signatory States: it prescribes a uniform requirement, with the consequence that Contracting States may not impose formal requirements more onerous than simple writing — such as the requirement of separate approval. Secondly, from a teleological standpoint, the purpose of the 2006 reform was, with a view to facilitating the smooth functioning of international commercial relations, to extend to all arbitral proceedings the bulk of the more liberal provisions previously applicable to international awards under the 1994 Act.
This observation carries considerable systemic weight. The 2006 reform was not intended to restore the applicability of Article 1341(2) of the Civil Code to arbitration with an international dimension; on the contrary, it was designed to extend the more liberal regime to arbitral proceedings generally.
The Milan Court of Appeal also rejected the objection that the New York Convention applies only to foreign awards and not to international ones. Whilst acknowledging that Article I of the Convention, by referring to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where recognition and enforcement are sought, might appear to contemplate only so-called “foreign” awards, the Court held that an a fortiori reasoning leads inevitably to the conclusion that the Convention also applies to international awards: if the Convention expressly applies to foreign awards — which are entirely detached from the domestic legal order — then it must all the more apply to international awards which, unlike foreign ones, retain significant connections with the national legal system, internationality being no more than a subjective characteristic.
Although they confirm what is by now a well-established line of authority, the decisions under review offer the practitioner working in international commerce an occasion for reflection that reaches well beyond matters of procedure.
The cases decided by the Rome and Florence Courts of Appeal reveal a recurring pattern: an Italian company signs an international contract containing an arbitration clause in favour of a foreign arbitral institution without paying adequate attention to the implications of that choice; subsequently, when a dispute arises and the arbitration proves unfavourable or simply inconvenient, it seeks a declaration from the Italian courts that the clause is invalid, invoking a formal defect that is entirely irrelevant in the international context.
This pattern points to a problem of drafting — and, more fundamentally, of contractual culture. An arbitration clause is not an incidental term or a mere formality to be tucked away among the boilerplate provisions at the end of a contract: it is the choice of the tribunal that will decide any dispute, with all that this entails in terms of the language of proceedings, applicable law, seat of arbitration, costs, timetable, and prospects for enforcement of the award. Negotiating such a clause calls for a careful and informed assessment that takes into account not only the counterparty’s preferences but also one’s own ability to sustain arbitral proceedings in a given jurisdiction, the reputation and efficiency of the chosen arbitral institution, and the practical prospects of enforcing the award in the countries where the counterparty holds its assets.
The lesson to be drawn from the case law examined is, ultimately, that the best protection for a party entering into an international commercial relationship lies not in the formalism of the separate written approval — a requirement that the living law has now overtaken — but in a thorough understanding, at the time of contracting, of the consequences of the arbitration clause being accepted. It is the task of the legal adviser assisting the enterprise at the pre-contractual stage to explain those consequences clearly and to negotiate a clause that reflects a genuine balance between the parties, rather than relying on the illusion that a conscious choice may later be reopened by invoking formal defects.