The Court of first instance of Salerno recently heard a complex corporate case and its decision (No. 3296 of 21 October 2019, Italian text available here), together with the decision issued by the Court of Appeal of Salerno with reference to the same dispute (No. 1311 of 14 September 2018, Italian text available here), provides the perfect opportunity to carry out a brief analysis of the issues concerning “irrituale” arbitration in corporate matters, that is to say the relationship between the “irrituale” arbitration as governed by Italian Code of Civil Procedure and arbitration in corporate matters under Italian Legislative Decree No. 5 of 17 January 2003 .
As a matter of fact, Italian law provides for two different kinds of arbitration proceedings: on the one hand, “regular” (“rituale”) arbitration, resulting in an enforceable award; on the other hand, “irrituale” arbitration, whose award has the effect of a binding contract.
In addition, “irrituale” arbitration has certain other peculiarities: concerning, for instance, the recourse for its setting aside.
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A contract contains an arbitration clause whereby the parties’ disputes are referred to arbitration. Notwithstanding the said clause, a party sues the other party in State Court. The respondent objects to the Court’s jurisdiction, on the basis of the arbitration clause, but the Court issues a wrong decision, rejects the objection and upholds its jurisdiction. In such a case, what is the appellate Court that the respondent should seize to have the first decision overturned?
Two recent decisions, issued a day apart by two different Courts of Appeal (decision of the Court of Appeal of Catanzaro No. 1782 of 19 September 2019, Italian text available here; and decision of the Court of Appeal of Potenza No. 636 of 20 September 2019, Italian text available here), offer two different answers to the above question: the Court of Appeal of Catanzaro holds that the appeal has to be submitted to the Court of Appeal, while the Court of Appeal of Potenza states that it has to be filed with the Italian Supreme Court. Both decisions are correct because they concern two different kinds of arbitration proceedings.
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A recent ruling of the Court of first instance of Genoa (decision no. 1325 of 14 April 2016, Italian text available here) deals with the issues of the objection of arbitration and its characterisation and construction.
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