An arbitration clause contained in a contract is enforceable against the receiver in bankruptcy (curatore fallimentare) or the liquidation commissioner (commissario liquidatore) of insolvency proceedings when these act to enforce rights and claims arising from the contract itself, entered into prior to the commencement of the insolvency proceedings.
A declaration of bankruptcy or the commencement of other insolvency proceedings does not render the arbitration clause inoperative and does not preclude the filing of a request for arbitration or the continuation of any arbitral proceedings already pending.
The receiver in bankruptcy or the liquidation commissioner who brings an action deriving from the estate of the insolvent party stands in the same substantive and procedural position as the latter, with the consequence that the third-party respondent may raise against them all defences that could have been raised against the predecessor in title, including the plea of arbitration based on the arbitration clause.
The arbitration clause enjoys contractual autonomy as a contract producing procedural effects, retaining its validity and effectiveness irrespective of any invalidity, termination or dissolution of the main contract in which it is contained, unless the clause itself is directly invalid or has lapsed.
The mandate conferred on the arbitrators by means of an arbitration clause entered into prior to the declaration of bankruptcy is not subject to the automatic termination (scioglimento) provided for by Article 78 of the Bankruptcy Act, as it constitutes a contractual act referable to a collective mandate and to a mandate conferred also in the interest of third parties.
The termination of the contract pursuant to Article 81 of the Bankruptcy Act effected by the receiver does not affect the arbitration clause contained therein where the receiver or the liquidation commissioner asserts claims that originate from and are justified by the contract itself.