Law report 2022

Supreme Court

  • Supreme Court, VI Civil Chamber, 4 January 2022, No. 75
    If the parties drafted an arbitration clause referring to a non-existing arbitral institution, this does not affect the clause’s enforceability, and the reference has to be construed as a method for appointing arbitrators.
  • Supreme Court, I Civil Chamber, 5 January 2022, No. 187
    In arbitration proceedings, the issue of a possible violation of due process must be examined not from a mere formalistic point of view but as part of an assessment to ascertain whether the parties’ right to present their cases has actually been impaired. Consequently, an arbitral award might be set aside only if the Court is satisfied that a party was prevented from presenting its case.
  • Supreme Court, II Civil Chamber, 14 January 2022, No. 1061
    If the arbitration clause contained in a contract expressly only refers to disputes concerning the interpretation of the contract, the arbitral tribunal also has jurisdiction on disputes concerning the termination of the contract and compensation for damages.
    If a party objects to the State Courts jurisdiction, based on an arbitration clause, and at the same time raises a counterclaim, the objection cannot be deemed as waived, as the counterclaim has to be construed as a subordinate prayer for relief, in case the said objection is not granted.
  • Supreme Court sitting en banc, 18 January 2022, No. 1392
    Assessing the nature of the involved legal situations is crucial to evaluate whether a dispute arising out of agreements supplementing or replacing administrative measures can be deferred to an arbitral tribunal. Indeed, if these situations amount to a full right (‘diritto soggettivo’), the case may be heard by an arbitral tribunal; an opposite conclusion is reached if these situations amount to a legitimate interest (‘interesse legittimo’).
    An arbitration clause providing for an arbitral tribunal whose members vary in number and granting the chair a double vote in an even panel does not breach Article 809, para. 1, of the Italian Code of Civil Procedure, whereby the arbitral tribunal consists of an odd number of arbitrators.
  • Supreme Court, I Civil Chamber, 19 January 2022, No. 1647
    The violation of public policy, preventing the recognition of a foreign award, only concerns exceptional cases in which fundamental principles are breached. In other words, not every breach of foreign procedural law concerning due process amounts to a violation of public policy, but only those breaches that jeopardise the parties’ right to present their cases. Consequently, the fact that arbitration proceedings were conducted in a foreign language (in particular, in Russian) does not constitute a violation of public policy.
  • Supreme Court, VI Civil Chamber, 19 January 2022, No. 1668
    It is settled case law that an arbitration clause in a contract does not apply to disputes concerning another, although connected, contract between the same parties. This principle does not apply in the case of a contract later modified by another contract, as the arbitration clause refers to the entire agreement, even if entered into at different times.
  • Supreme Court, I Civil Chamber, 20 January 2022, No. 1805
    A dispute concerning concessions for the exercise of horse-race betting, particularly the claim for compensation of the damage caused by a change in the economic conditions on which the relevant agreements were based, does not concern the exercise of authoritative powers. As a consequence, it can be deferred to an arbitral tribunal.
  • Supreme Court, I Civil Chamber, 25 January 2022, No. 2066
    If the parties did not object to the jurisdiction of the arbitral tribunal during the arbitration proceedings, they are barred from raising such objection in the proceedings for the setting aside of the award. Nonetheless, this principle does not apply if the parties claim that they never entered into an enforceable arbitration agreement.
  • Supreme Court, I Civil Chamber, 25 January 2022, No. 2067
    In proceedings before the Supreme Court, the latter cannot directly assess the arbitral award, but only the decision of the Court of Appeal.
  • Supreme Court, I Civil Chamber, 25 January 2022, No. 2137
    If it is allowed to request to set aside an award for violation of the rules of law applicable to the merits, the Court of Appeal cannot refrain from examining the claimed violation because it does not fall within the scope of application of Article 829, para. 1, of the Italian Code of Civil Procedure.
  • Supreme Court, I Civil Chamber, 25 January 2022, No. 2159
    The special proceedings for quantifying the arbitrators’ fees and expenses, provided for by Article 814 of the Italian Code of Civil Procedure, does not apply in the case of ‘irrituale’ arbitration.
  • Supreme Court, I Civil Chamber, 25 January 2022, No. 2194
    An arbitral award may be set aside under Article 829, para. 1, No. 11 of the Italian Code of Civil Procedure only if there is any inconsistency between the various components of the operative part of the award. An inconsistency between the grounds and the operative part, or between different parts of the grounds, may lead to setting aside only if it renders it impossible to understand the decision’s logical and legal reasoning.
  • Supreme Court, II Civil Chamber, 26 January 2022, No. 2308
    An arbitral award may be set aside under Article 829, para. 1, No. 11 of the Italian Code of Civil Procedure only if there is any inconsistency between the various components of the operative part of the award. An inconsistency between the grounds and the operative part, or between different parts of the grounds, may lead to setting aside only if it renders it impossible to understand the decision’s logical and legal reasoning.
  • Supreme Court, I Civil Chamber, 27 January 2022, No. 2400
    A Court or arbitral tribunal may examine of its own motion an issue of law, without referring it to the parties in order to allow them to present their case. On the other hand, Courts and arbitral tribunals are prevented from examining of their own motion factual issues or issues concerning both facts and the law.
  • Supreme Court, VI Civil Chamber, 28 January 2022, No. 2666
    The filing by the claimant who brought proceedings in State Courts of the contract, only signed by the respondent, containing the arbitration clause, cannot be construed as an acceptance of that clause by the same claimant.
  • Supreme Court, I Civil Chamber, 2 February 2022, No. 3255
    The Court shall assess whether a foreign award is contrary to public policy in the light of the content of its operative part. In this respect, provisions contrary to public policy may consist of awards directly contrary to it (e.g. the order to marry or not to marry a certain person). Nonetheless, they may also consist of neutral awards (e.g. the order to pay a sum of money) if the relevant reasons are contrary to public policy (e.g. the payment of compensation for the killing of a person) [obiter].
  • Supreme Court, I Civil Chamber, 2 February 2022, No. 3259
    Failure to pay the advance on the arbitrators’ foreseeable expenses, as referred to in Article 816-septies of the Italian Code of Civil Procedure, results in the ipso jure termination of the arbitration agreement, without the need (or possibility) of subsequent intervention by the arbitrators.

Courts of Appeal

  • Court of Appeal of L’Aquila, 7 January 2022, No. 19
    The objection to the State Courts jurisdiction based on an arbitration clause has to be raised by the interested party in its timely statement of defence filed under Articles 166 and 167 of the Italian Code of Civil Procedure.
  • Court of Appeal of Venice, 11 January 2022, No. 25
    If a party does not spontaneously fulfil its obligation as ascertained in an ‘irrituale’ arbitration, the award-creditor has to bring proceedings in State Court.
  • Court of Appeal of Bari, 13 January 2022, No. 54
    An arbitral award may be set aside under Article 829, para. 1, No. 11 of the Italian Code of Civil Procedure only if there is any inconsistency between the various components of the operative part of the award. An inconsistency between the grounds and the operative part, or between different parts of the grounds, may lead to setting aside only if it renders it impossible to understand the decision’s logical and legal reasoning.
  • Court of Appeal of Milan, 17 January 2022, No. 142
    In proceedings for the setting aside of an award, the Court is not allowed to review the merits. In fact, it is required to assess if there is a ground for setting aside the award. Only in the affirmative it can also examine the merits.
  • Court of Appeal of Rome, 18 January 2022, No. 336
    An award declaring that a right exists or does not exist is capable of becoming res judicata under Article 2909 of the Italian Civil Code. Therefore, the above declaration cannot be questioned in subsequent proceedings based on facts that the parties pleaded or could have pleaded in the arbitration proceedings.
  • Court of Appeal of Palermo, 18 January 2022, No. 60
    In proceedings for the setting aside of an award, the Court is not allowed to review the merits, not even under Article 829, para. 1, Nos. 4 and 5, of the Italian Code of Civil Procedure. In fact, the said provisions only allow setting aside an award if the grounds for the decisions are not indicated or in case of severe logical inconsistencies.
  • Court of Appeal of Milan, 21 January 2022, No. 213
    Legislative Decree No. 179 of 8 October 2007 established the Conciliation and Arbitration Chamber at Consob and a peculiar kind of administered arbitration proceedings. Nonetheless, the parties to contracts for investment services can refer their dispute to ad hoc arbitration or arbitration under the rules of other arbitral institutions.
  • Court of Appeal of Milan, 28 January 2022, No. 302
    Under the iura novit curia principle, the Court (or the arbitral tribunal) is entitled to construe the facts pleaded by the parties, without the need to allow the parties to present their case with respect to such construction.
  • Court of Appeal of Milan, 28 January 2022, No. 306
    Condominium owners are not entitled to request the setting aside of an award issued in proceedings to which the condominium was a party.
  • Venice Court of Appeal, 31 January 2022, No. 193
    In ex aequo et bono proceedings, the arbitral tribunal is entitled to use criteria, principles and equitable assessments that appear suitable and fair, according to the conscience of its members, for the resolution of the case. As a consequence, it is not possible to request the setting aside of the award on the grounds of violation of the rules of substantive law unless this violation amounts to a breach of public policy.
  • Court of Appeal of Florence, 3 February 2022, No. 207
    Failure to object to the jurisdiction of State Courts in a dispute concerning the same subject matter, but not identical to another brought before an arbitral tribunal, does not have effects on the arbitral jurisdiction.

Courts of first instance

  • Court of first instance of Turin, 3 January 2022, No. 19
    The existence of an arbitration clause does not exclude the jurisdiction of State Courts to issue an order for payment (as in arbitration proceedings is not allowed the issuance of ex parte orders). Nonetheless, if the debtor files an opposition against the order for payment objecting to State Courts’ jurisdiction based on the said clause, the Court sets aside the order and declares the jurisdiction of the arbitral tribunalTribunale di Torino, 3 gennaio 2022, n. 19.
  • Court of first instance of Foggia, 4 January 2022 No. 2
    The existence of an arbitration clause does not exclude the jurisdiction of State Courts to issue an order for payment (as in arbitration proceedings is not allowed the issuance of ex parte orders). Nonetheless, if the debtor files an opposition against the order for payment objecting to State Courts’ jurisdiction based on the said clause, the Court sets aside the order and declares the jurisdiction of the arbitral tribunal.
  • Court of first instance of Vicenza, 4 January 2022, No. 9
    The existence of an arbitration clause does not exclude the jurisdiction of State Courts to issue an order for payment (as in arbitration proceedings is not allowed the issuance of ex parte orders). Nonetheless, if the debtor files an opposition against the order for payment objecting to State Courts’ jurisdiction based on the said clause, the Court sets aside the order and declares the jurisdiction of the arbitral tribunal.
  • Court of first instance of Aosta, 10 January 2022, No. 6
    The existence of an arbitration clause does not exclude the jurisdiction of State Courts to issue an order for payment (as in arbitration proceedings is not allowed the issuance of ex parte orders). Nonetheless, if the debtor files an opposition against the order for payment objecting to State Courts’ jurisdiction based on the said clause, the Court sets aside the order and declares the jurisdiction of the arbitral tribunal.
  • Court of first instance of Turin, 10 January 2022, No. 55
    If an arbitration clause in a company’s articles of association only refers to disputes relating to the interpretation of the said articles of association, the dispute concerning the resignation of a shareholder and its subsequent rights falls within the State Courts jurisdiction [per incuriam with respect to Art. 808-quater of the Italian Code of Civil Procedure and the relevant case law].
  • Court of first instance of Bologna, 13 January 2022, No. 62
    If an arbitration clause has been removed from a company’s articles of association before a claim is brought, State Courts have jurisdiction over the disputes that – based on the said clause – would have been deferred to arbitrators.
  • Court of first instance of Crotone, 13 January 2022, No. 27
    The objection to the State Courts jurisdiction based on an arbitration clause has to be raised by the interested party in its statement of defence timely filed under Articles 166 and 167 of the Italian Code of Civil Procedure.
  • Court of first instance of Bari, 14 January 2022, No. 174
    An arbitration award, which does not expressly order a payment, is not enforceable, nor can it become such if the award has been granted exequatur under Article 825 of the Italian Code of Civil Procedure.
  • Court of first instance of L’Aquila, 18 January 2022, No. 6
    The objection to the State Courts jurisdiction based on an arbitration clause has to be raised by the interested party in its statement of defence timely filed under Articles 166 and 167 of the Italian Code of Civil Procedure.
  • Court of first instance of Milan, 18 January 2022, No. 257
    State Courts have jurisdiction on disputes concerning a resolution approving a company’s financial statements if the claimant claims they are untrue and/or inaccurate, despite the arbitration clause possibly contained in the company’s article of associations.
  • Court of first instance of Rome, 24 January 2022, No. 1031
    The enforceability of an arbitration clause is not prevented because the party objecting to the State Courts’ jurisdiction previously brought several proceedings in State Courts in breach of the same clause.
  • Court of first instance of L’Aquila, order 27 January 2022
    The request to stay of shareholders’ meeting resolutions under Article 2378 of the Italian Civil Code cannot be filed before the request to set aside such resolutions. Consequently, if an arbitral tribunal has jurisdiction over the request to set aside, the request for arbitration has to be filed before the request to stay.
  • Court of first instance of Genoa, 31 January 2022, No. 217
    The arbitration clause contained in a contract does not entail arbitral jurisdiction over disputes relating to other contracts, even if they are related to the one containing the said clause.
  • Court of first instance of Novara, 31 January 2022, No. 49
    In the same contract, the coexistence of an arbitration clause and a forum clause does not entail the prevalence of the jurisdiction of State Courts. Indeed, the two provisions must be construed by recognizing State Courts’ jurisdiction over matters other than those referred to arbitration.
  • Court of first instance of Tivoli, 1 February 2022, no. 144
    If the articles of association of a company contain an arbitration clause, the arbitral tribunal has jurisdiction over the disputes concerning sale and purchase agreements of the shares of that company [per incuriam with respect to Cass., Sez. II Civ., 31 March 2014, no. 7501 and Cass., Sez. I Civ., 25 June 2008, no. 17328].
  • Court of first instance of Ancona, 2 February 2022, No. 158
    An arbitration clause in the articles of association of a company, only concerning disputes between shareholders or between shareholders and the company, does not apply to disputes between the company and its directors.
  • Court of first instance of Ancona, 2 February 2022, No. 169
    A unilateral arbitration clause, which allows a party to decide whether to bring arbitration proceedings or proceedings in State Court, is enforceable.
  • Court of first instance of Bologna, 2 February 2022, No. 240
    In corporate arbitration, the Chairperson of a Court that is not the proper venue may act as appointing authority [per incuriam with respect to Supreme Court, I Civil Chamber, 12 November 1992, No. 12188; in any case, the issue is controversial amongst the scholars].