Italian law provisions on corporate arbitration (enacted by legislative decree no. 5 of 17 January 2003) entails a number of interpretative issues, possibly the reason for the limited recourse to arbitration in corporate matters.
Separability presumption is universally applied, as the relevant doctrine spread all over the world during the first half of XX century.
In the words of Italian lawmakers, “The validity of the arbitration clause must be evaluated independently of the underlying contract” (Article 808, para. 2, of the Italian Code of Civil Procedure).
In order to access the Recovery Fund, EU member States are required to draft a “National Recovery and Resilience Plan”, consistent with the specific recommendations the Europen Commission addressed them.
In that perspective, Italian government recently made available a preliminary document, headed “Guidelines for the definition of the national recovery and resilience plan” (Italian text available here). A short, forty-page document, with two pages only on Italian judicial system.
In fact, the said guidelines contain vague indications with respect to Italian judicial system and Italian justice: they only claim a number of nebulous, undefined proposed goals (shortening the duration of Court proceedings; reforming codes of civil, criminal and tax proceedings; planning interventions on the Italian judiciary organisation). Nothing else.
Following the publication of these guidelines, Unione Nazionale delle Camere Civili, that is to say, the association representing Italian civil lawyers, published its proposal for an extraordinary plan for civil justice (Italian text available here). It took an admirable initiative, as it triggers (or it could be able to trigger) a broad debate on possible specific, practical measures.
An Arbitral Tribunal seated in Padua recently dealt with some issues concerning its jurisdiction. The award was delivered on 21 January 2020 and its Italian text is available here.
The dispute heard by the Tribunal referred to an alleged relationship between a bank and a limited company evidenced by a framework agreement and an interest rate swap contract.
The claimant’s case was that the said contractual documents were never signed by its legal representative and that the signature on them was forged. As a consequence, the claimant requested the respondent to return the amounts the latter received under the terms of the said contracts.
An interesting point is that the claimant commenced the arbitration proceedings provided for by the arbitration clause contained in the contracts that, in its own case, it never entered into.
Another interesting point is that, on the basis of the opinion of a Tribunal-appointed expert, the claimant’s signature on the contracts actually proved to be forged. The respondent did not raise any objection after the filing of the expert opinion. Nonetheless, when the Tribunal requested the parties to express their views on the matter, the respondent objected to the Tribunal’s jurisdiction, lacking an enforceable (and even existing) arbitration clause.
International corporate arbitration under Italian law is a very interesting topic that nonetheless is virtually neglected by Italian scholars. Besides, to date there are no reported decisions.
First of all, a clarification of terminology is due: in this context, ‘international corporate arbitration’ means an abroad seated arbitration concerning a dispute falling within the scope of Article 34 of Italian Legislative Decree No. 5 of 17 January 2003, n. 5, which sets forth particular rules concerning arbitration in corporate matters.
In practice, possible cases of international commercial arbitration are not uncommon. For instance, an Italian incorporated company could represent the investment vehicle of a foreign entity. And that foreign entity could wish that corporate disputes (against an Italian co-investor, or the company’s directors) are referred to an abroad seated arbitration.
A few scholars addressed the relevant issue, which is also addressed by a recent decision issued by the Court of Appeal of Genoa (decision No. 649 of 9 July 2020, Italian text available here).
The Arbitration Rules of Milan Arbitration Chamber, which came into force a year ago (as discussed here), has recently been integrated. The new provisions, applying from 1st July 2020, establish a simplified arbitration procedure.
The said new provisions are contained in Annex D to the arbitration rules, available here (for the time being, only in Italian)
CoViD-19 pandemic also has an impact on arbitration proceedings.
The relevant issues were addressed by Italian lawmaker, that enacted provisions which require careful thought for their construction.
Arbitrability of disputes arising out of the termination of a contract: in my opinion, this is a very interesting topic, both for its theoretical and practical consequences. In fact, I have already addressed this topic, a few months ago (in this post), in relation to contractual restitutions, commenting a decision by the Court of Milan that in my view misapplied the principles governing the matter.
A recent decision issued by the Court of first instance of Rome (No. 1695 of 27 January 2020, Italian text available here) gives me the chance to examine again the topic, from a partially different point of view.
Pre-contractual liability, under Italian law, is a form of tort liability. In a nutshell (and with some degree of approximation), it concerns cases similar to those provided for by English Misrepresentation Act 1967, as well as other cases falling outside the scope of the said Act involving a breach of the duty to act in good faith during the negotiations aimed at entering into a contract.
In this respect, a topic of great interest is that of the enforceability of the arbitration agreement possibly contained in the contract in case of pre-contractual claims (or tort claims related to the negotiation, the execution and the fulfilment of the contract).
A recent decision issued by the Court of first instance of Milan (No. 58 of 8 January 2020, Italian text available here) addressed the same topic. In my opinion, such decision is really impressive, both for its detailed and thorough grounds and for the conclusions it reached.