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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A recent ruling of the Court of first instance of Rome (decision no. 4216 of 1 March 2016 of the III Civil Chamber of the Court of first instance of Rome, Italian text available here) goes trough the issue of the relationship between arbitral and judicial proceedings. In particular, the ruling considers whether it is possible to order the stay of proceedings pending in Court, while awaiting the decision in other proceedings pending before an Arbitral Tribunal. This is an issue I already analysed on this post.
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The relationship between arbitration and judicial proceedings was the topic of a ruling of the Italian Supreme Court (order no. 783 of 19 January 2016 of the III Civil Chamber, Italian text available here). In this ruling, the Supreme Court came to the right conclusion that it is not allowed to order the stay of proceedings pending before a Court while awaiting the decision in proceedings pending before an Arbitral Tribunal. However, the Supreme Court’s reasoning is not entirely correct. This is the reason why I would like to briefly discuss its ruling.
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