Default arbitration proceedings

Default arbitration proceedings, or – with a more accurate wording – arbitration proceedings in which a situation occurs corresponding to the situation giving rise to default proceedings in State Courts, is a topic of relevant practical interest.

Italian scholars dealt with that topic, developing three theses.  The first thesis holds that the above situation may occur in arbitration proceedings.  The second thesis, on the contrary, is that this situation cannot occur.  The third thesis, which is the more persuasive, is that it is necessary to identify the law rules concerning default proceedings before State Courts, which are compatible with arbitration proceedings.

On the other hand, Italian case law tends to repeat the doctrine that default proceedings rules do not apply in arbitration proceedings.

In this framework, two recent decisions, both issued in proceedings for the setting aside of Italian domestic awards, are fascinating, as the awards were issued in ‘default’ arbitration proceedings.

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Arbitration award and “long” term to commence setting aside proceedings

A recent decision rendered by Italian Supreme Court sitting en banc (decision No. 8776 of 30 March 2021, Italian text available here) has clarified – based on hermeneutical criteria, systematic reasons, and constitutional provisions – when the term for commencing setting aside proceedings under Article 828, para. 2, of Italian Code of Civil Procedure starts to run.

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Public policy

A recent decision issued by the Italian Supreme Court (decision No. 1788 of 28 January 2021, Italian text available here) deals with the issue of public policy and its relevance in arbitration matters.

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International corporate arbitration

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).

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Arbitration in the time of CoViD-19

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.

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Joinder and arbitration

In certain cases, Italian law requires the joinder of certain parties to the proceedings. For instance, as a general rule, the action aimed at setting aside a contract requires the joinder of all parties thereof.

The topic of such compulsory joinder in arbitration proceedings is partly governed by statutory law (Articles 816-quater and 816-quinquies of the Italian Code of Civil Procedure); nonetheless, its implementation gives rise to several turmoils (as it was noted by a learned author).

What happens if the party whose joinder is required by law is not joined to the proceedings?  A possible answer to that question is provided by the Court of Appeal of Campobasso, in its recent ruling (No. 367 of November 7, 2019, Italian text available here).

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“Irrituale” arbitration in corporate matters

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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Objection to State Court’s jurisdiction

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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Iura novit Arbiter

A recent decision issued by the Court of Appeal of Genoa (decision No. 1215 of 27 August 2019, Italian text available here) addresses a topic of great interest: the application of iura novit Curia principle in arbitration proceedings.

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Arbitration and non-contractual claims

In the previous post, I examined a decision, regarding arbitration and contractual restitutions, that in my opinion is not correct. On the basis of theoretical principles and in accordance with the case-law of the Supreme Court, this decision is in contrast with the favor arbitrati of Italian law.

I have therefore researched Italian State Courts decision on a very narrow (but interesting) issue: that concerning arbitration of claims under Article 1669 of the Italian Civil Code; that is to say, non-contractual claims connected to a contractual relationship. At the end of my research, I found that some State Courts maintain that Arbitral tribunals have jurisdiction over these claims (Court of Appeal of Catania, decision No. 820 of 10 April 2019, Italian text available here; and Court of Appeal of Bologna, decision No. 2453 of 5 October 2018, Italian text available here). And they do so even though the Italian Supreme Court laid down principles leading to the opposite conclusion (Italian Supreme Court, II Civil Chamber, decision No. 1674 of 3 February 2012, Italian text available here; and Italian Supreme Court, II Civil Chamber, decision No. 4035 of 15 February 2017, Italian text available here) .

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