Court of Milan, 9 September 2024, No. 6760
Legal Principle
An arbitration clause which refers generically to all disputes arising from a particular contract must be interpreted as referring the adjudication to arbitral proceedings of all claims which find their *causa petendi* (legal basis for the claim) in the contract itself and those arising in relation to modifications made by the parties to the original contract, in application of Article 808-*quater* of the Code of Civil Procedure, which provides that the arbitration agreement extends to all disputes deriving from the contract or relationship to which the agreement refers.
The regulation of onerous clauses under Article 1341 of the Civil Code does not apply to arbitration clauses contained in articles of association, there being no weaker contracting party in associative relationships deserving of the special protection provided for onerous clauses, since participation in an association presupposes a community of interests and resources.
The regulation of corporate arbitration under Article 838-*bis* of the Code of Civil Procedure, which provides on pain of nullity that the designation of arbitrators must be entrusted to a third party external to the company, does not constitute a general principle of public policy applicable outside corporate arbitration and does not extend to unincorporated associations.
Regarding the qualification of arbitration, an arbitration clause which does not contain express provision for the contractual nature of the award, pursuant to Article 808-*ter* of the Code of Civil Procedure, constitutes institutional arbitration, the mere provision for summary reasoning of the award being irrelevant for purposes of different qualification.
The presence of an arbitration clause does not preclude recourse to the *decreto ingiuntivo* (payment order), however an objection of lack of jurisdiction on grounds of arbitration raised by the respondent results in a declaration of nullity of the *decreto ingiuntivo* for want of jurisdiction of the court seised.
Methodological Notes
standard