Law report 2022 - Arbitration in Italy

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Roberto Oliva

Partner at Pavia e Ansaldo - Litigation & Arbitration

Supreme Court

Supreme Court, VI Civil Division, 4 January 2022, no. 75
The reference made by the parties in an arbitration clause to a non-existing arbitral institution does not affect the validity of the clause and must be understood as a method of appointing arbitrators.
Supreme Court, I Civil Division, 5 January 2022, no. 187
On the subject of arbitration proceedings, the question of the breach of cross-examination must be examined not from a formal point of view but in the context of an investigation aimed at ascertaining an actual impairment of the possibility of deducing and contradicting, in order to ascertain whether the act has also achieved the purpose of establishing a regular cross-examination and whether, in any event, the breach has not caused prejudice to the party; It follows that the award and the proceedings must be declared null and void only if the appeal is followed by an indication of the specific prejudice it caused to the right of defence.
Supreme Court, II Civil Division, 14 January 2022, no. 1061
In the presence of an arbitration clause, contained in a contract, which devolves to arbitrators the hearing of disputes concerning the interpretation of the contract, a claim for termination of the contract and compensation for damages also falls within arbitral jurisdiction.
In the event of the simultaneous submission of the objection of compromise and counterclaim, the former cannot be considered as waived by reason of the formulation of the latter, since the examination of the counterclaim is ontologically conditioned on the non-acceptance of the objection of compromise, the validity of the latter being incompatible with the examination of the counterclaim.
Supreme Court, Full Court, 18 January 2022, no. 1392
In order to assess whether a dispute arising from the implementation of agreements supplementing or substituting an administrative measure, which is subject to the exclusive jurisdiction of the administrative court, can be arbitrated, it is necessary to assess the nature of the legal situations involved, since arbitration may be used only if such situations have the substance of subjective rights, pursuant to Article 12 of the Code of Civil Procedure, and not the substance of legitimate interests.
An arbitration clause that provides for an arbitration board with a variable composition and, in the event of an even number of members, assigns a double vote to the chairman of the board, does not violate article 809, para. 1 of the code of civil procedure, which prescribes an odd number of arbitrators.
Supreme Court, I Civil Division, 19 January 2022, no. 1647
The violation of public order, which is an obstacle to recognition, can be recognised only in exceptional cases of violation of fundamental principles of the requested State. In other words, the judge must verify whether the fundamental principles of the legal system have been complied with, so that a violation of the right of defence does not exist in every failure to comply with a provision of foreign procedural law protecting the party’s participation in the proceedings, but only when it has a significant impact on the right of defence with respect to the entire trial, in contrast with the procedural public order referring to the inviolable principles guaranteeing the right to act and resist in court. In light of these principles, the fact that the arbitration proceedings were conducted in a foreign language (in this case, in Russian) does not constitute a violation of public order.
Supreme Court, VI Civil Division, 19 January 2022, no. 1668
In the presence of a single negotiation to which a subsequent integration has been brought, the jurisprudential principle on the cross-reference between separate negotiations does not apply for the purposes of the possibility of application, which is excluded, of the arbitration clause contained in one also to the other, since reference must instead be made to the single contractual regulation, albeit agreed upon at different times.
Supreme Court, I Civil Division, 20 January 2022, no. 1805
On the subject of concessions for the exercise of horse-race betting, a dispute brought to obtain an order against the P.A. grantor to pay compensation for the damage suffered by the concessionaires as a result of the supervening change in the economic conditions on which the agreement was based (due to the de facto disappearance of the exclusive public reservation of the relevant management following the illegal entry into the market of foreign operators), as well as the failure to activate systems for the acceptance of fixed odds bets and by telephone and telematic means is devolved to the jurisdiction of the ordinary courts, since it relates to the implementation phase of the concessionary relationship and since it takes into consideration profiles pertaining, not to the exercise of authoritative powers affecting the functional moment of the same relationship, but to the ascertainment of the breach by the P. A., the grantor, to the obligations of the contractual legal relationship of an equal nature, so that the aforesaid dispute may be settled by arbitration.
Supreme Court, I Civil Division, 25 January 2022, no. 2066
In the case of a non-existent arbitration clause, the parties’ subsequent conduct does not cure the arbitrators’ lack of authority. This amnesty, provided for in Article 829(1)(4) of the Code of Civil Procedure in relation to Article 817 of the Code of Civil Procedure, applies instead in the event of the arbitrators’ exceeding the limits imposed on them by the arbitration agreement.
Supreme Court, I Civil Division, 25 January 2022, no. 2067
In the cassation appeal against the judgement that has decided on the appeal for nullity of the arbitral award, the Court of Cassation cannot directly appreciate the arbitral award, but only the contested decision within the limits of the grounds of appeal relating to the violation of the law and, if still admitted, to the congruity of the motivation of the judgement rendered on the appeal, not being able to substitute its judgement to that expressed by the Court of Merit on the correctness of the reconstruction of the facts and the assessment of the elements of the preliminary investigation carried out by the arbitrators.
Supreme Court, I Civil Division, 25 January 2022, no. 2137
In the case of an award that can also be challenged for breach of the rules of law applicable to the merits of the dispute, the scope of the Court of Appeal’s cognition cannot be limited to the errores in procedendo referred to in Article 829(1) of the Code of Civil Procedure.
Supreme Court, I Civil Division, 25 January 2022, no. 2159
The special procedure for settling arbitrators’ fees and expenses, provided for by article 814 of the Code of Civil Procedure for regular arbitration, is not applicable, not even by analogy, to informal arbitration.
Supreme Court, I Civil Division, 25 January 2022, no. 2194
The reference in s. 11 of Art. 829 of the Code of Civil Proceedings The reference to contradictory provisions in Article 829(11) of the Code of Civil Procedure must be interpreted as meaning that the contradiction must arise between the different parts of the operative part, i.e. between the grounds and the operative part, and not also between the different parts of the grounds, whereas internal contradictions between the different parts of the grounds, which are not expressly provided for among the defects that lead to the nullity of the award, may be considered a defect of the award only if they make it absolutely impossible to reconstruct the logical and legal background of the decision due to the total absence of a statement of reasons that can be traced back to its functional model.
Supreme Court, II Civil Division, 26 January 2022, no. 2308
The reference in s. 11 of Art. 829 of the Code of Civil Procedure to contradictory provisions is to be interpreted as meaning that the contradiction must arise between the different components of the operative part, i.e. between the grounds and the operative part, and not also between different parts of the grounds, while internal contradictions between the different parts of the grounds, not expressly provided for among the defects entailing the nullity of the award, may be relevant as a defect of the award only to the extent that they determine the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons traceable to its functional model.
Supreme Court, I Civil Division, 27 January 2022, no. 2400
The principle, elaborated with reference to ordinary proceedings, according to which in cases where the judge examines a question of pure law ex officio, without referring it to the parties in order to allow discussion on it (so-called “third way”), does not exist. third way), there is no nullity of the judgment, inasmuch as (the breach of ethics on the part of the judge being undisputed) such omission does not give rise to the occurrence of any procedural defect other than error iuris in iudicando or error in iudicando de iure procedendi, the reporting of which in the court of law allows the judgment to be set aside only if such error is actually made: if, on the other hand, it is a question of fact, or a mixed question of fact and law, the losing party may complain of the decision, claiming that the breach of that duty of indication has vulnerable the right to ask for evidence or, hypothetically, to obtain a possible remittance in terms, with the consequence that, if it is a question of a first instance judgment that can be appealed, a specific ground of appeal may be put forward only for the purpose of removing certain preclusions (especially with regard to counter-exception or non-essential evidence), without the need to reach the more radical solution of remittance to the first instance, subject to proof, in very specific and determined cases, that the very value of cross-examination has been truly and irreparably violated.
Supreme Court, VI Civil Division, 28 January 2022, no. 2666
The production at trial by the plaintiff acting before the state court of the contract containing the arbitration clause, containing only the defendant’s signature, is not valid as acceptance of said clause by the plaintiff.
Supreme Court, I Civil Division., 2 February 2022, no. 3255
The scrutiny of the existence of provisions contrary to public policy, preventing recognition of a foreign award, must be carried out exclusively on the basis of the operative part, with the specification that provisions contrary to public policy may consist not only of precepts directly contrary to it (eg, the obligation to marry or not to marry a certain person) but also in precepts that are in themselves neutral (e.g. the payment of a sum of money) when the cause of the payment is in itself contrary to public policy (e.g. the payment of compensation for the killing of a person) [obiter].
Supreme Court, I Civil Division, 2 February 2022, no. 3259
The non-payment of the advance on the arbitrators’ foreseeable expenses, as provided for by article 816-septies of the Code of Civil Procedure, entails the ipso jure dissolution of the arbitration bond, without the need (or the possibility) of subsequent intervention by the arbitrators.
Supreme Court, VI Civil Division, 8 February 2022, no. 3934
By virtue of the principle of autonomy of the arbitration clause, it has an individuality that is clearly distinct from the contract in which it is inserted, not constituting an accessory thereto, with the consequence that the nullity of the substantive contract does not affect the arbitration clause contained therein, the arbitrators being left to ascertain the alleged invalidity.
Supreme Court, I Civil Division, 10 February 2022, no. 4335
Disputes concerning the validity of corporate resolutions may be validly submitted to arbitrators by means of a statutory arbitration clause.
Supreme Court, I Civil Division, 10 February 2022, no. 4338
The arbitration clause contained in a contract in favour of a third party is enforceable against the latter if the latter has manifested its intention to take advantage of the stipulation, since such intention cannot but concern the contractual clauses as a whole.
Supreme Court, Labour Division, 11 February 2022, no. 4569
The decision of a state court that affirms or denies the existence or validity of a clause for informal arbitration, and that, therefore, in the first case does not rule on the dispute declaring that informal arbitration must take place and in the second case declares, instead, that the decision of the state court may take place, is not subject to appeal through the regulation of jurisdiction, since the stipulation of informal arbitration determines the inapplicability of all the rules dictated for regular arbitration, including art. 819-ter cod. proc. civ.
Supreme Court, VI Civil Division, 18 February 2022, no. 5420
Disputes relating to alleged acts of mala gestio by the director and his dismissal for just cause are referred to arbitrators where the company’s by-laws contain an arbitration clause attributing disputes against directors to the latter’s jurisdiction.
Supreme Court, VI Civil Division, 24 February 2022, no. 6223
On the subject of arbitration, the first sentence of Article 819-ter(1) of the Code of Civil Procedure in providing that the jurisdiction of the arbitrators is not excluded by the connection between the dispute referred to them and a case pending before an ordinary court, implies, with reference to the hypothesis that a plurality of claims has been brought, on the one hand, that the existence of arbitral jurisdiction is to be verified with specific regard to each of them It is not possible to refer the entire dispute to the arbitrators (or to the ordinary courts) by virtue of the mere connection, and the objection of lack of jurisdiction must be raised with specific reference to the claim or claims in respect of which the alleged lack of jurisdiction can be pleaded; Therefore, where the objection is raised only in relation to one of several connected claims, but which do not give rise to a necessary joinder, its acceptance entails the necessary separation of the cases, since the proceedings may well continue before different courts by reason of the derogation and availability of the rules on jurisdiction.
Supreme Court, II Civil Division, 25 February 2022, no. 6329
The objection of compromise is of a procedural nature and constitutes a question of jurisdiction that is not mandatory in nature, so as to justify its relief ex officio under article 38(3) of the Code of Civil Procedure, since it is based solely on the will of the parties, who are free to choose whether or not to entrust the dispute to arbitrators.
Supreme Court, II Civil Division, 1 March 2022, no. 6732
Given that the clause has an autonomous character, the expropriator, who is a third party to the contract, may avail himself of it only by virtue of an agreement with the creditor that, being intended to extend the effects of the original arbitration agreement, cannot derive from the mere assumption of the obligation of others perfected by concluding facts, requiring an act that complies with the formal requirements imposed by Art. 807 of the Code of Civil Procedure, without prejudice to the question whether, as argued with reference to the assignment of credit, the clause remains effective to the benefit of the original debtor and whether the latter may in any event oppose it to the expromitting party.
Supreme Court, VI Civil Division, 11 March 2022, n. 7990
The binary arbitration clause, which entrusts certain disputes to the decision of three arbitrators, two of whom are to be appointed by each party, may be applied in a multi-party dispute when, on the basis of an assessment to be made a posteriori – in relation to the petitum and the causa petendi – it appears that the interests at stake are grouped into only two homogeneous and opposing groups, provided that such grouping is compatible with the type of claim asserted.
Supreme Court, I Civil Division, 11 March 2022, no. 8050
Art. 92 of the Code of Civil Procedure, pursuant to which costs may be set off only in the event of mutual dissent or for other serious and exceptional reasons, also applies to arbitration proceedings.
Supreme Court, I Civil Division, 14 March 2022, no. 8213.
The arbitrator’s right to receive payment of the fee arises from the fact of having actually performed the task.
Court of Cassation, VI Civil Division, 16 March 2022, n. 8609
In the presence of an arbitration clause that allows the respondent in arbitration to exclude arbitral jurisdiction, a clear preference for the state court must be inferred, capable of entrenching the latter’s jurisdiction where it has been seized by one of the contracting parties.
Supreme Court, II Civil Division, 17 March 2022, no. 8698
The arbitration clause for informal arbitration contained in a condominium by-law, which provides that disputes concerning the interpretation and qualification of the by-law that may arise between the administrator and the individual condominium owners are to be settled by arbitrators, must be interpreted, in the absence of a contrary intention in the sense that all cases in which the rules may represent a fact constituting the claim or in any case having causa petendi connected with the operation of the rules themselves, which, in the proper sense, is the act of self-organisation with typical regulatory content approved by the assembly with the majority established by the second paragraph of art. 1136 of the Civil Code and which contains the rules on the use of the common property and the allocation of expenses, according to the rights and obligations due to each condominium owner, as well as the rules for the protection of the building’s decorum and those relating to administration.
Supreme Court, VI Civil Division, 31 March 2022, no. 10433
The raising of the objection of lack of jurisdiction of the ordinary judge, due to the existence of an arbitration clause, does not require either sacramental formulas or the identification of specific criteria of jurisdiction, the deduction of the existence of the arbitration agreement being sufficient.
Supreme Court, I Civil Division, 31 March 2022, no. 10454
The assessment of the facts deduced by the parties in the arbitration proceedings and of the evidence acquired in the course of the proceedings cannot be challenged by means of an appeal for nullity of the award.
Supreme Court, II Civil Division, 31 March 2022, no. 10473
On the subject of an appeal against an arbitral award, the defect of reasoning, as a defect falling under Article 829(5) of the Code of Civil Procedure, in relation to Article 823(3) of the same code, can be identified only when the grounds of the award are completely lacking or are so deficient as not to allow the identification of the rationale of the decision adopted or, in other words, to denote an argumentative process that is absolutely unacceptable at the dialectical level, so as to result in a non-motivation.
Supreme Court, I Civil Division, 5 April 2022, no. 10845
Once the contractual will of the parties has incorporated the provisions of the general specifications, in the text in force at the time the contract was concluded, the entire relationship is governed by, and must be conducted in accordance with, the relevant rules, any amendments to which will be valid as prescriptions to which the entity must conform its specifications and contracts without directly altering the contractual regime, whether substantive or procedural, such as that relating to the jurisdiction of the ordinary judge as an alternative to that of the board of arbitrators, of the contracts in progress.
Supreme Court, I Civil Division, 5 April 2022, no. 10846
Once the contractual will of the parties has incorporated the provisions of the general specifications, in the text in force at the time the contract was concluded, the entire relationship is governed by, and must be conducted in accordance with, the relevant rules, the amendments to which, if any, are valid as prescriptions to which the entity must conform its specifications and contracts without directly altering the contractual regime, whether substantive or procedural, such as that relating to the jurisdiction of the ordinary judge as an alternative to that of the board of arbitrators, of ongoing contracts.
Supreme Court, I Civil Division, 5 April 2022, no. 11073
Once the contractual will of the parties has incorporated the provisions of the general specifications, in the text in force at the time the contract was concluded, the entire relationship is governed by, and must be carried out in accordance with, the relevant rules, any amendments to which will be valid as prescriptions to which the body must conform its specifications and contracts without directly altering the contractual regime, whether substantive or procedural, such as that relating to the jurisdiction of the ordinary judge as an alternative to that of the board of arbitrators, of ongoing contracts.
Supreme Court, I Civil Division, 5 April 2022, no. 11075
Once the contractual will of the parties has incorporated the provisions of the general specifications, in the text in force at the time the contract was concluded, the entire relationship is governed by, and must be carried out in accordance with, the relevant rules, any amendments to which will be valid as prescriptions to which the entity must conform its specifications and contracts without directly altering the contractual regime, whether substantive or procedural, such as that relating to the jurisdiction of the ordinary judge as an alternative to that of the board of arbitrators, of ongoing contracts.
Supreme Court, I Civil Division, 5 April 2022, no. 11076
Once the contractual will of the parties has incorporated the provisions of the general specifications, in the text in force at the time the contract was concluded, the entire relationship is governed by, and must be carried out in accordance with, the relevant rules, any amendments to which will be valid as prescriptions to which the body must conform its specifications and contracts without directly altering the contractual regime, whether substantive or procedural, such as that relating to the jurisdiction of the ordinary judge as an alternative to that of the board of arbitrators, of ongoing contracts.
Supreme Court, I Civil Division, 5 April 2022, no. 11079
Once the contractual will of the parties has incorporated the provisions of the general specifications, in the text in force at the time the contract was concluded, the entire relationship is governed by, and must be carried out in accordance with, the relevant rules, any amendments to which will be valid as prescriptions to which the entity must conform its specifications and contracts without directly altering the contractual regime, whether substantive or procedural, such as that relating to the jurisdiction of the ordinary judge as an alternative to that of the board of arbitrators, of ongoing contracts.
Supreme Court, I Civil Division, 6 April 2022, no. 11245
Article 816-sexies of the Code of Civil Procedure provides that if, in the course of the arbitration proceedings, the party ceases to exist due to death or other cause, or loses legal capacity, the arbitrators shall take the appropriate measures to ensure the application of cross-examination for the purposes of the continuation of the proceedings, and may also suspend the proceedings. The reform legislator’s choice was therefore not to contemplate, for the hypothesis of the extinction or loss of capacity of the party, the mechanism of interruption that is operative in ordinary civil proceedings: instead, it was intended to assign to the arbitrators the task of identifying the most appropriate means to ensure the adversarial process with those persons who, following the events mentioned, are legitimated to continue the arbitral proceedings, as successors of the original party.
The hypotheses referred to in Article 829.1.4 of the Code of Civil Procedure, in which the appeal must have only a rescinding outcome, leaving the rescission to the arbitrators, include any situation that impedes, in rite, the pronouncement of the merits and therefore also violations of the cross-examination in the static sense, which occur when the party that is to be heard is not allowed to participate in the proceedings.
Supreme Court, I Civil Division, 12 April 2022, no. 11799
The means of challenging an arbitral award must be determined on the basis of the nature of the act concretely performed by the arbitrators and not of the arbitration as envisaged by the parties, so that if an arbitral award has been rendered despite the fact that some of the parties claim to have, in reality, agreed on a clause for ritual arbitration, the award itself must be challenged, albeit with a view to asserting its ritual character, not before the court of appeal, pursuant to Art. 828 of the Code of Civil Procedure, but under the ordinary rules on arbitration, but in accordance with the ordinary rules on jurisdiction and with the observance of the dual level of jurisdiction, asserting the flaws in the manifestation of the will of the arbitrator, whereas, where the arbitrators have deemed the arbitration to be ritual and have, therefore, acted in the forms set forth in articles 816 et seq, the appeal against the award, even if it is aimed at contesting the irregular nature of the arbitration and the consequent errores in procedendo committed by the arbitrators, must be brought before the Court of Appeal pursuant to Arts. 827 et seq. of the Code of Civil Procedure and not in the manner proper to an appeal against an irregular award, i.e. before the ordinary court of jurisdiction.
Supreme Court, I Civil Division, 12 April 2022, no. 11800
On the subject of determining the remuneration due to arbitrators, each arbitrator has his own subjective right to receive remuneration for his work.
Supreme Court, I Civil Division, 12 April 2022, no. 11802
It follows from Art. 808(2) of the Code of Civil Procedure not only the rule of autonomy of the arbitration clause but also the other rule that the power to enter into the contract includes the power to agree to the arbitration clause.
Supreme Court, I Civil Division, 12 April 2022, No. 11803
A cassation appeal pursuant to Article 111 of the Constitution against the decision of the court of appeal denying the enforceability of the award must be declared inadmissible.
Supreme Court, I Civil Division, 12 April 2022, no. 11804
Article 810 of the Code of Civil Procedure, which governs the appointment of arbitrators and is also applicable in the event of their replacement pursuant to Article 811 of the Code of Civil Procedure, does not provide for any formalities other than communication to the other party. It follows that the interpreter is not entitled to pronounce the award null and void for the alleged failure to observe formalities that are not even provided for in the arbitration rules.
Supreme Court, I Civil Division, 12 April 2022, no. 11805
Since the informal award is contractual in nature, until the entry into force of Legislative Decree No. 40 of 2 February 2006 – which extended by the new Article 808-ter of the Code of Civil Procedure the cases of annulment of the award – it could only be challenged on the grounds of defects in the will of the parties (mistake, fraud or violence) or the incapacity of the parties or the arbitrators.
Supreme Court, I Civil Division, 12 April 2022, no. 11807
The activity of ritual arbitrators is jurisdictional in nature and substitutes the function of the ordinary judge (so much so that determining whether a dispute falls within the jurisdiction of the former or the latter is a question of jurisdiction). It follows that also the arbitrator, like the judge, may proceed to raise ex officio the nullity of the contract and this is permitted in all hypotheses of contestation of the contract and even if the invalidity found is different from that envisaged by the parties, with the sole limitation of the judgement.
Supreme Court, I Civil Division, 13 April 2022, no. 11958
In the case of the award of arbitrators’ fees by the courts, where the subject matter of the dispute is (also) the termination of a contract, the entire original value of the contract must be considered for the purposes of determining the value of the dispute.
Supreme Court, I Civil Division, 13 April 2022, n. 11962
Arbitrators are not absolutely comparable, for the purposes of their remuneration, to members of the legal profession. The fact that the former sometimes, as in the present case, are also lawyers is irrelevant because the respective activities carried out in the two cases are different, and the qualification to practise law does not operate as a criterion for the unification of fees and the automatic transposition to arbitrators of the fees due to the aforementioned professionals. In fact, the difference in roles (and corresponding activities performed) between the lawyer who assists the party in an arbitration proceeding (ritual or informal) and the legal practitioner who, on the other hand, as sole arbitrator, or as chairman or even only as a member of an arbitration panel, decides the dispute that is the subject of that proceeding, is intuitive. It is not possible, therefore, with regard to this second case, a total and mechanical application of the parameters for the liquidation of fees for the legal profession precisely because of the non-absolute equivalence of the arbitration function to that of the legal profession in relation to the peculiarity of the work performed, in the two cases, by the two parties in question.
Supreme Court, I Civil Division, 13 April 2022, no. 11963
In the summary liquidation procedure provided for by article 814 of the Italian Code of Civil Proceedings, which can be carried out once the award has been pronounced, the president of the court is precluded from investigating the validity of the agreement and the award (including censure of the activities carried out by the arbitrators) and the regularity of the appointment of the arbitrators, matters included in article 829 of the Italian Code of Civil Proceedings, which are reserved for the jurisdiction of the appellate court indicated in article 828 of the Italian Code of Civil Proceedings.
Supreme Court, II Civil Division, 13 April 2022, no. 12058
Irritual arbitration is attributable to the scheme of a mandate, conferred jointly by several parties on one or more arbitrators and aimed at the conclusion of a contractual agreement. The contractual award is not in the nature of a transaction and therefore Article 1972 of the Civil Code, which sanctions the nullity of a transaction that has as its object a contract that is void due to the unlawfulness of the cause or motive common to both parties, does not apply to it.
Supreme Court, VI Civil Division, 13 April 2022, no. 12068
In the event of doubt as to the scope of the arbitration clause, the interpretative option that restricts its scope to matters relating to those expressly contemplated must be preferred, since in the event of doubt state jurisdiction must be preferred over arbitral jurisdiction [per incuriam with respect to Art. 808-quater of the Code of Civil Procedure].
Supreme Court, I Civil Division, 14 April 2022, no. 12314
The irregular composition of the arbitration panel because it was made in default of a condition stipulated in the agreement by one of its members may be invoked as a ground for nullity pursuant to Article 829(1)(2) of the Code of Civil Procedure and thus only if the relevant issue has already been raised in the arbitration proceedings.
Supreme Court, II Civil Division, 21 April 2022, no. 12689
Article 241(12) of Legislative Decree No. 163/2016, as amended by Article 5 of Legislative Decree No. 53/2010, which limits the arbitral tribunal’s remuneration, including the secretary’s fee, if any, to €100,000, does not apply if the arbitral tribunal was established prior to the amendment. In this regard, it is irrelevant that some members of the Arbitral Tribunal were replaced in the course of the proceedings.
Supreme Court, VI Civil Division, 1 July 2022, no. 21026
In the case of linked contracts, only one of which contains an arbitration clause, it is necessary to investigate the cause petendi concretely asserted in order to determine jurisdiction.
Supreme Court, VI Civil Division, 7 July 2022, no. 21583
The rejection of the complaint against the decree of enforceability of the award cannot be challenged in cassation.
Supreme Court, I Civil Division, 19 July 2022, no. 22621
The provisions of the general tender specifications for public works referred to in Presidential Decree 1063/1962, expressly referred to in the tender contracts entered into by non-state administrations, constitute negotiating clauses operative by agreement, including the one regulating the composition of the arbitration board.
Supreme Court, VI Civil Division, 20 July 2022, no. 22764
Where a plea of lack of jurisdiction is upheld on the basis of an arbitration clause, i.e. other than the one taken into consideration by art. 38(2) of the Code of Civil Procedure, the act by which the judge disposes of the dispute has a decisional nature and can therefore be challenged by means of the regulation of jurisdiction.
The prohibition set forth in Article 34, para. 2 of Legislative Decree 5/2003 to refer corporate disputes to arbitrators appointed by persons not extraneous to the company represents an express legal prohibition, falling within the general provision of Article 806, para. 1 of the Code of Civil Procedure, such as to preclude the arbitrability of the dispute. In the presence of a prohibition that renders the case non-arbitrable, the lack of jurisdiction of the arbitrators is ex officio detectable, so that in this hypothesis the judge’s jurisdiction is, by reflex, mandatory. It is therefore excluded that the exception to the prohibition laid down by the aforementioned article 34(2) escapes the judge’s control when reviewing jurisdiction.
Supreme Court, I Civil Division, 25 July 2022, no. 23160
For the purposes of the recognition and enforcement of a foreign award under Article 5(2)(b) of the New York Convention of 10 June 1958, the requirement that the award is not contrary to Italian public policy must be found to apply only to the dispositive part of the arbitral award.
Since the provisions of the award that are contrary to public policy may consist not only of precepts that are directly contrary to it, but also of precepts that are per se neutral when the cause of payment is in itself contrary to public policy, the preceptive content of the operative part may well be identified, filled with meaning and understood in its concrete scope through the examination of the expositive and motivating part of the award, for the purpose of the conclusive scrutiny of the possible contrariety of the decisum to public policy.
Supreme Court, I Civil Division, 25 July 2022, no. 23214
In arbitration proceedings, the existence of situations of incompatibility, capable of compromising the impartiality of the members of the board of arbitrators, must be asserted by means of a petition for objection to be filed, pursuant to article 815 of the Italian Code of Civil Procedure, within a peremptory term of ten days from the date of the arbitration, on the other hand, situations of incompatibility of which the party has become aware after the decision are irrelevant to the validity of the award and, where they do not result in absolute inability to perform the arbitration function and, in general, the judicial function, cannot be challenged by means of an appeal for nullity, given the now acquired binding effect of the award and the letter of Article 829.1.1 of the Civil Procedure Code. 829(1)(2) of the Code of Civil Procedure, which limits the inability to be an arbitrator to the cases strictly provided for by Article 812 of the Code of Civil Procedure.
Supreme Court, I Civil Division, 28 July 2022, no. 23589
Article 829(3) of the code of civil procedure, as reformulated by article 24 of legislative decree no. 40/2006, applies, pursuant to the transitional provision in article 27 of the aforementioned legislative decree, to all arbitral proceedings commenced after the entry into force of the new provision, but, in order to establish whether an appeal is admissible on the grounds of violation of the rules of law on the merits of the dispute, the law – to which article 829(3) of the code of civil procedure refers – must be identified as the law of the country in which the arbitrator is to be found, Therefore, in the case of a common law agreement concluded before the entry into force of the new rules, in the absence of the parties, an appeal against the award must be considered admissible, as provided by Art. 829.2 of the Code of Civil Procedure in its previous version, unless the parties themselves had authorised the arbitrators to rule in equity or had declared the award non-appealable.
Supreme Court, I Civil Division, 2 September 2022, no. 25927
In the case of an appeal against a company’s resolution to exclude a shareholder, the question as to the nature of arbitration, whether ritual or irritual, is entirely irrelevant, since in both cases the question as to the legitimacy or otherwise of the aforementioned exclusion resolution must be referred to the arbitrators and cannot be decided by the ordinary courts.
Supreme Court, I Civil Division, 20 September 2022, no. 27451
The nullity of an arbitral award for breach of the rules on the appointment of arbitrators may be invoked, pursuant to Article 829(2) of the Code of Civil Procedure, only if it was raised in the arbitration proceedings.
Supreme Court, I Civil Division, 21 September 2022, no. 27614
The arbitrator authorised to rule in equity is released from the strict observance of rules of substantive law that do not result in the non-observance of fundamental and binding rules of public policy. These rules do not include those setting forth the principles concerning the performance of obligations and those set forth in arts. 1372 and 1322 of the Civil Code.
Supreme Court, I Civil Division, 21 September 2022, no. 27615
The reference to the public policy clause in Article 829(3) of the Code of Civil Procedure must be interpreted as a reference to the fundamental and mandatory rules of the legal system and does not imply an attenuated notion of public policy, which includes all existing mandatory rules. Among these fundamental and binding rules is not Article 2744 of the Civil Code, which in fact places the prohibition of covenants for the protection of the individual assets of the weaker contracting party, without involving fundamental and general interests of the community.
Supreme Court, VI Civil Division, 22 September 2022, no. 27787
The effectiveness of an arbitration clause, as a vexatious clause, is subject to specific approval in writing only in cases where such a clause is included in contracts with general terms and conditions drafted by only one of the contracting parties or concluded by signing forms or forms, not when the clause is contained in the bylaws or regulations of a corporate body of which the party becomes a member.
Supreme Court, I Civil Division, 23 September 2022, no. 27954
The assessment of the facts deduced and the evidence acquired in the course of the arbitral proceedings cannot be challenged by means of an appeal on the ground of nullity of the arbitral award, since such an assessment is negotiable and falls within the institutional competence of the arbitrators.
Supreme Court, VI Civil Division, 3 October 2022, no. 2862
Disputes relating to mere variations, necessary for the complete and better realisation of the work, and not to works having an individuality of their own, distinct from the original work, are devolved to the jurisdiction of the arbitral tribunal provided for by the arbitration clause contained in the tender contract.
Supreme Court, I Civil Division, 7 October 2022, no. 29288
The obligation to state reasons for the award, the non-fulfilment of which determines the possibility of challenging it for nullity, pursuant to Article 829(5) of the Code of Civil Procedure, may be considered to have been fulfilled only when the reasons are completely lacking or are so deficient as to make it impossible to understand the logic behind the arbitral decision, or contain irreconcilable contradictions in the body of the reasons or the operative part of the award such as to render the ratio of the decision incomprehensible.
Supreme Court, III Civil Division, 13 October 2022, no. 29932
The provision in a contract in public form of an arbitration clause concerning the settlement of disputes arising therefrom does not exclude its scope as an enforceable title within the meaning of Article 474(1)(3) of the Code of Civil Procedure.
Supreme Court, II Civil Division, 21 October 2022, no. 31207
The arbitrators’ payment of their remuneration constitutes no more than a simple proposal addressed to the parties, which is not binding on them if they do not accept it, and in the latter case is left to the determination of the president of the court pursuant to section 814(2) of the Code of Civil Procedure.
Supreme Court, I Civil Division, 21 October 2022, no. 31210
On the subject of arbitration, the release from the arbitration agreement with respect to the dispute that gave rise to the arbitration proceedings, provided for by Art. 816-septies, para. 2 of the Code of Civil Procedure, is not applicable, in the event that the parties fail to make the advance within the time limit set by the arbitrators, concerns only the hypothesis that none of the parties has paid within the time limit set, whereas in the different hypothesis that one of the parties has timely paid its share, unlike the other, the logical-systematic interpretation of the rule requires the granting of a second time limit to allow the fulfilling party to pay also the share pertaining to the defaulting party.
Supreme Court, I Civil Division, 24 October 2022, no. 31350
An arbitration clause that refers generically to disputes arising from the contract to which it relates shall be interpreted, in the absence of express will to the contrary, as meaning that all and only disputes having their cause of action in the contract itself fall within the scope of arbitration, excluding those that have only a historical basis in the contract, as in the case where, despite the existence of an arbitration clause in a tender contract, an action for non-contractual liability is brought, pursuant to Article 1669 of the Civil Code, alleging serious defects in the building.
Supreme Court, VI Civil Division, 2 November 2022, no. 32191
The arbitration clause is not an accessory of the contract in which it is inserted but has its own individuality and autonomy, clearly distinct from that of the contract to which it accedes, so that the grounds of invalidity of the contract in question do not extend to it nor, a fortiori, those of termination of the relevant relationship.
Supreme Court, II Civil Division, 4 November 2022, no. 32537
When the injunction is declared null and void in the acceptance of the objection of arbitration filed by the opposing party, the latter must be identified as the opposing party, with the immediate consequences that this entails on the regulation of the costs of the litigation.
Supreme Court, I Civil Division, 7 November 202, no. 32641
In the hypothesis of the submission of the appeal for nullity of the arbitral award to the Court of First Instance, instead of the Court of Appeal, in the case of lack of jurisdiction by degree, the principle according to which the timely submission of the appeal to an incompetent judge prevents the forfeiture of the appeal, determining the so-called translatio iudicii, does not apply and the appeal is inadmissible.
Supreme Court, I Civil Division, 7 November 2022, no. 32740
On the subject of arbitration, the sanction of nullity provided for in Article 829, para. 1, no. 11, Code of Civil Procedure for an award containing contradictory provisions does not correspond to that of Article 360, para. 1, no. 5, Code of Civil Procedure, but must be understood in the sense that such inconsistency must arise between the different components of the operative part, i.e. between the grounds and the operative part, while internal inconsistency between the different parts of the grounds, which is not expressly provided for among the defects that lead to the nullity of the award, may be relevant as a defect of the award only to the extent that it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons traceable to its functional model.
Supreme Court, I Civil Division, 7 November 2022, no. 32752
In the case of international arbitration on the basis of a clause concluded before the 2006 reform, the repealed Art. 838 of the Code of Civil Procedure applies, under which, in the silence of the parties, the award cannot be challenged for breach of the rules of law.
Supreme Court, I Civil Division, 8 November 2022, no. 32794
A partial award, which decides a preliminary issue on the merits, produces immediate effects in the legal sphere of the parties, giving rise to an immediate and effective loss of jurisdiction on that point. Correctly, therefore, the same award may settle, pursuant to Article 814 of the Code of Civil Procedure, the costs of the proceedings accrued up to that moment in relation to the ruling that partially defined the merits of the dispute.
Supreme Court, I Civil Division, 8 November 2022, no. 32796
The principles of procedural economy and reasonable duration of proceedings as constitutionalised in Art. 111, para. 2 of the Constitution also apply to the procedure for challenging arbitral awards, and by virtue of a constitutionally oriented reading of the current Article 384 of the Code of Civil Procedure. inspired by these principles, once it has verified the failure to rule on a ground of appeal, the Supreme Court may omit the cassation with reference of the judgment under appeal and decide the case on the merits when the question of law raised by that ground is unfounded, so that the ruling to be rendered comes to confirm the operative part of the judgment of appeal (determining the futility of returning the case to the merits), provided that the question does not require further factual findings.
Supreme Court, I Civil Division, 8 November 2022, no. 32838
The sole purpose of the proceedings challenging an arbitral award is to verify the legitimacy of the decision rendered by the arbitrators, not to re-examine the issues on the merits submitted to them, so that the findings of fact made by the arbitrators, such as those concerning the interpretation of the contract at issue, cannot be censured in the proceedings challenging the award, unless the grounds on this point are completely lacking or absolutely deficient.
Supreme Court, I Civil Division, 9 November 2022, no. 32996
A partial award is immediately appealable pursuant to Art. 827(3) of the Code of Civil Procedure only if, by deciding one or more claims, it has defined the judgment in respect of those claims, whereas immediate appealability must be excluded when the award has decided preliminary issues on the merits without defining the judgment.
Supreme Court, I Civil Division, 9 November 2022, no. 32984
Article 829(3) of the Code of Civil Procedure, as reformulated by Article 24 of Legislative Decree 40/2006, applies, pursuant to the transitional provision of Article 27 of the aforementioned Legislative Decree, to all arbitration proceedings instituted by a court of arbitration, to all arbitration proceedings brought after the entry into force of the reform, but, in order to establish whether an appeal for breach of the rules of law on the merits of the dispute is admissible, the law – to which art. 829.3 of the Code of Civil Procedure refers – must be identified as the law in force at the time the arbitration agreement was entered into.
Supreme Court, I Civil Division, 10 November 2022, no. 33140.
For the purposes of the starting date of the so-called short time limit under article 828 of the Code of Civil Procedure, the provision contained in the last sentence of article 816-bis (1) of the Code of Civil Procedure must be interpreted as meaning that the notification of the arbitral award and its appeal can be made by means of the delivery of such documents: to the party personally; alternatively, to the lawyer appointed by the party in the arbitration proceedings by the award, without any relevance for this purpose of the party’s choice of domicile with the professional.
Supreme Court, I Civil Division, 10 November 2022, no. 33149
The decision of the ordinary judge that affirms or denies the existence or validity of an informal arbitration, and that, therefore, in the first case does not rule on the dispute by declaring that arbitration must take place and in the second case declares, instead, that the decision of the ordinary judge may take place, cannot be challenged by the regulation of jurisdiction, as the agreement of informal arbitration determines the inapplicability of all the rules dictated for the usual arbitration, including article 819-ter of the Code of Civil Procedure.
Supreme Court, I Civil Division, 17 November 2022, no. 33900
Respect for the guarantee of the principle of cross-examination in arbitration proceedings, including informal arbitration proceedings, must be appreciated from an essentially substantive viewpoint, as it is not possible to anchor the judgement in question solely to the verification of any formalities imposed by the arbitrators, but rather to ensure that the decision is the result of the assessment of defensive arguments and evidence on which the parties have had the opportunity to make their assessment and formulate any observations.
Supreme Court, I Civil Division, 23 November 2022, no. 34561
An appeal for nullity of the arbitral award pursuant to Art. 829, para. 2 of the Code of Civil Procedure on the grounds of non-compliance with the rules of law in iudicando is admissible only if circumscribed within the same confines as the infringement of the law opposable with an appeal for cassation pursuant to Art. 360, para. 1 no. 3 of the Code of Civil Procedure.
Supreme Court, I Civil Division, 23 November 2022, no. 34565
The sanction of nullity provided for in Article 829(1)(11) of the Code of Civil Proceedings The sanction of nullity provided for by Article 829(1)(11) of the Code of Civil Procedure for an award containing contradictory provisions shall be understood in the sense that such contradictions must arise between the different parts of the operative part, i.e. between the grounds and the operative part, whereas internal contradictions between the different parts of the grounds, which are not expressly provided for among the defects entailing nullity of the award, may be considered a defect of the award only if they make it absolutely impossible to reconstruct the logical and legal background of the decision due to the total absence of a statement of reasons that can be attributed to its functional model.
Supreme Court, I Civil Division, 14 December 2022, no. 36564
An arbitrator does not pronounce an award outside the bounds of the arbitration agreement if he has based his decision on investigative material acquired ex officio by virtue of a provision of the applicable arbitration rules authorising him to do so.
Supreme Court, I Civil Division, 30 December 2022, no. 38133
On the subject of an appeal against an arbitral award, the defect of reasoning, as a defect falling under Article 829(5) of the Code of Civil Procedure in relation to Article 823(3) of the same code, can only be recognised when the grounds of the award are completely lacking or are so deficient as not to allow the identification of the rationale of the decision adopted or, in other words, to denote an argumentative process that is absolutely unacceptable on a dialectical level, so as to result in a non-motivation.

Courts of Appeal

Court of Appeal of L’Aquila, 7 January 2022, no. 19
The objection of compromise is of a procedural nature and integrates a question of jurisdiction that is not mandatory, so as to justify its relief ex officio pursuant to art. 38, para. 3 of the Italian Code of Civil Procedure, given that it is based solely on the will of the parties, who are free to choose whether or not to entrust the dispute to arbitrators, and therefore such objection had to be formulated, under penalty of forfeiture, in the response and within the term provided for by the combined provisions of arts. 166 and 167 of the Italian Code of Civil Procedure.
Court of Appeal of Venice, 11 January 2022, no. 25
In the event a party does not spontaneously perform its obligation as recognised by the arbitrators in an informal arbitration proceeding, the other party, in order to obtain the condemnation of the defaulting party and the consequent effectiveness as an enforcement title of the contractual statute that came into being as a result of the arbitral judgement, must file a normal contractual action for condemnation of performance based precisely on the same contract.
Court of Appeal of Bari, 13 January 2022, no. 54
The reference in s. 11 of Art. 829 of the Code of Civil Procedure to contradictory provisions must be interpreted in the sense that the contradiction must emerge between the different components of the operative part, i.e. between the grounds and the operative part, and not also between different parts of the grounds, while the internal contradiction between the different parts of the grounds, not expressly provided for among the defects entailing the nullity of the award, may be relevant as a defect of the award only if it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons traceable to its functional model.
Court of Appeal of Catania, 13 January 2022, no. 81
The issue of jurisdiction, in relations between arbitrators and state courts, must be examined without first verifying the basis of the claim.
Court of Appeal of Milan, 17 January 2022, no. 142
An appeal against the award is not admissible for review of the merits, given the nature of the nullity judgment and the rule of specificity of the grounds. In the rescindent phase, the appellate court must in fact limit itself to ascertaining the existence of one of the nullities provided for by Article 829 of the Code of Civil Procedure, i.e. the errores in procedendo or in judicando specifically denounced with the grounds of appeal, without being able to proceed to ascertain the facts.
Court of Appeal of Rome, 18 January 2022, no. 336
The ritual arbitral award, which declares existing or non-existent the right asserted in the action with the claim, is capable of assuming the authority of res judicata, pursuant to Article 2909 of the Italian Civil Code, which makes the content of the ruling incontrovertible and, therefore, in subsequent proceedings the ascertainment made as to the existence or non-existence of the right declared cannot be questioned on the basis of facts deduced or deducible in the first proceedings.
Court of Appeal of Palermo, 18 January 2022, no. 60
An appeal on the grounds of nullity of an arbitral award cannot aim at a reassessment of the facts, not even from the standpoint of a review of the adequacy and congruity of the reasoning followed by the arbitrators, since the provisions of Article 829(1)(4) and (5) of the Code of Civil Procedure allow an appeal on the grounds of failure to state reasons only if there is a radical lack of logical support for the arbitral award.
Court of Appeal of Milan, 21 January 2022, no. 213
It remains possible for the parties, even in the area of investment services, to opt for the common forms of arbitration, the rules of which are therefore not derogated from Legislative Decree No. 179 of 8 October 2007, which established, inter alia, the Conciliation and Arbitration Chamber at Consob, contrary to, for example, what happened in the so-called corporate arbitration.
Court of Appeal of Milan, 28 January 2022, no. 302
In application of the general principle iura novit curia, it is within the discretion of the Judge (or of the arbitral tribunal) to give legal qualification to the factual elements introduced in the proceedings, without the need for the parties to intervene in cross-examination.
Court of Appeal of Milan, 28 January 2022, no. 306
Condominium owners are not entitled to bring third-party proceedings in relation to an award rendered against the condominium.
Court of Appeal of Florence, 3 February 2022, no. 207
Failure to raise the objection of compromise in a dispute concerning the same title and having the same subject matter, but not identical to another pending before the arbitrators, does not deprive the latter of their decisional power.
Court of Appeal of Rome, 7 February 2022, no. 834
The presence of an arbitration clause does not prevent the plaintiff from requesting and obtaining from the ordinary courts an injunction for the claim arising out of the contract, without prejudice to the plaintiff’s right to object to the jurisdiction of the arbitration tribunal in the event of opposition, with the consequent necessity for the latter judge to revoke the injunction and send the parties to the sole arbitrator or to the arbitration board with a declaration that the claim brought before the ordinary courts is inadmissible.
Court of Appeal of Rome, 9 February 2022, no. 900
In corporate matters, only disputes relating to challenges to shareholders’ meeting resolutions of companies having an unlawful or impossible object, which give rise to nullity that can also be raised ex officio by the judge, to which are equated, pursuant to Article 2479-ter of the Italian Civil Code, those taken in the absolute absence of information.
Court of Appeal of Brescia, 10 February 2022, no. 216
In the presence of a statutory arbitration clause, the disputes referred to in Article 150 of the Bankruptcy Law also fall under the jurisdiction of the arbitrators.
Court of Appeal of Lecce (Taranto Division), 10 February 2022, no. 43
The remuneration due to arbitrators must be proportionate to the activity actually performed.
Messina Court of Appeal, 10 February 2022, no. 91
Since the referral of a dispute to arbitrators entails a derogation from ordinary jurisdiction, in case of doubt as to the interpretation of the scope of the arbitration clause, a restrictive interpretation of it and affirmative of state jurisdiction must be preferred [per incuriam].
Court of Appeal of Lecce, 14 February 2022, no. 204
The activity of the ritual arbitrators is of a jurisdictional nature and substitutes the function of the ordinary judge, so that establishing whether a dispute falls under the jurisdiction of the former or the latter is a question of jurisdiction, whereas establishing whether a dispute belongs to the jurisdiction of the ordinary judge and, in that context, to the substituted jurisdiction of the ritual arbitrators, or to that of the administrative or accounting judge, gives rise to a question of jurisdiction.
Court of Appeal of L’Aquila, 15 February 2022, no. 243
The contradiction to which Article 829(1)(11) of the Code of Civil Procedure refers is to be understood in the sense that the contrast must emerge between the different components of the operative part, i.e. between the grounds and the operative part, whereas the internal contradiction between the different parts of the grounds is not a defect as such, but only when it prevents the reconstruction of the logical and legal process underlying the decision due to the total absence of a grounds that can be attributed to its functional model.
Court of Appeal of Florence, 22 February 2022, no. 335
Where the award does not contain a section on the costs of the proceedings, it is vitiated by a defect of omission of judgment, pursuant to Article 829(1)(12) of the Code of Civil Procedure, which cannot be remedied by an order of the arbitrator correcting a material error.
Court of Appeal of Milan, 3 March 2022, no. 739
Questions relating to the (active or passive) entitlement of the right raised in a lawsuit pertain to the merits of the case, so that an erroneous arbitral decision on the point – where determined by an incorrect assessment of the preliminary findings – does not constitute a ground for nullity under Article 829(2) of the Code of Civil Procedure.
Court of Appeal of Messina, 4 March 2022, no. 130
On the subject of arbitration, the interpretation of the contract is reserved to the arbitrators, the judge of appeal having to limit himself, except for an absolute lack of motivation or the impossibility of retracing the logical course of the decision, to checking compliance with the rules of law, and in particular with the hermeneutic criteria established by Art. 1362 et seq. of the Italian Civil Code.
Court of Appeal of Venice, 4 March 2022, no. 495
With regard to procedural public policy on the recognition of foreign awards, the court must verify whether the fundamental principles of the legal system have been satisfied, including those relating to the procedure for the formation of the decision, with the clarification that a violation of the right of defence cannot be found in every failure to comply with a provision of foreign procedural law protecting the party’s participation in the proceedings, but only when, because of its significant impact, it has led to an infringement of the rights of the defence with respect to the entire trial, in conflict with the procedural public order referring to the inviolable principles guaranteeing the right to act and to resist in court, and not where it affects only the manner in which those rights are regulated or are exercised in individual cases.
For the purposes of recognition and enforcement of a foreign award, pursuant to article 5, para. 2(b) of the New York Convention of 10 June 1958, made enforceable by law no. 62 of 19 January 1968, the requirement of non-infringement of Italian public policy must be found only with regard to the dispositive part of the arbitral award.
The hypothesis of refusal of recognition and enforcement of a foreign award provided for by article 840, para. 2, no. 2, Code of Civil Procedure, consisting in the impossibility of asserting one’s own defence in the arbitral proceedings, is not achieved merely because a particular procedural provision in force in the foreign legal system and applicable in the case at hand has been violated, since it is necessary that the above-mentioned radical impossibility of defence has occurred, on the contrary, only a defect of the arbitral proceedings to be asserted, if at all, in the foreign legal system and with the means of appeal provided for by it.
Court of Appeal of Perugia, 9 March 2022, no. 107
The irritual arbitral award can be challenged only on the grounds of defects that may affect any manifestation of the will of the parties, such as error, violence, wilful misconduct and incapacity of the parties who made the award, or of the arbitrator himself.
Court of Appeal of Milan, 10 March 2022, no. 820
On the subject of arbitration, the favour for arbitral competence contained in the provision of article 808-quater of the Code of Civil Procedure refers only to cases in which the doubt of interpretation concerns the quantification of the subject matter entrusted to the arbitrators by the relevant agreement and not also the arbitration choice made by the parties.
Court of Appeal of Salerno, 10 March 2022, no. 277
The sanction of nullity of the award for violation of Article 829, para. 1, no. 4 of the Code of Civil Procedure, i.e. contradictory provisions, must be understood as a clear divergence in the components of the operative part, or between the grounds and the operative part, and internal divergences in the grounds that make it impossible to reconstruct the logical and legal process underlying the decision due to the total absence of grounds attributable to the decision taken.
Court of Appeal of Rome, 11 March 2022, no. 1656
An ordinary appeal brought against a first instance judgement that, in deciding the dispute submitted to it definitively, ruled only on jurisdiction, but denied it and referred it to the arbitrators, must be declared inadmissible.
Court of Appeal of Turin, 9 March 2022, no. 272
A purported misapplication of the principle of non-contestation does not concern the principle of cross-examination, but rather the burden of proof, which is not among the grounds listed in Art. 829 of the Code of Civil Procedure for which an appeal for nullity of the award is permitted.
Even in equitable arbitration awards, the award can be challenged only for failure to summarise the grounds, i.e. for lack of motivation or for a reasoning that does not allow one to understand the rationale of the decision or the logic followed by the arbitrators.
Court of Appeal of Catania, 10 March 2022, no. 483
In the case of public contracts, awards rendered on the basis of arbitration clauses concluded before the entry into force of Legislative Decree 40/2006 or by arbitration tribunals established after the entry into force of Legislative Decree 53/2010, according to the transitional rules set forth in Legislative Decree 40/2010, may be challenged for breach of the rules of law applicable to the merits of the dispute.
Court of Appeal of Florence, 15 March 2022, no. 511
In arbitration proceedings, there is no obligation to exchange the notes of the party’s technical consultants as part of the technical advice ordered by the arbitral tribunal.
Court of Appeal of Venice, ord. 16 March 2022
The foreign award recognised pursuant to article 839 of the Italian Code of Civil Procedure must be denied enforceability ope legis; however, article 648 of the Italian Code of Civil Procedure applies, pursuant to which, in the course of the proceedings opposing the exequatur of the foreign award, the opposing party may obtain from the judge the granting of provisional enforceability when, on the basis of a deliberation to be carried out merely incidentally, the grounds of opposition appear not to be manifestly grounded and not entirely plausible.
Court of Appeal of Turin, 21 March 2022, no. 317
In the presence of an arbitration clause contained in the condominium regulations, the claim brought by the condominium owners on a monitory basis does not fall within the scope of the matters referred to the arbitrators, as it involves only calculations on the basis of the allocation of expenses not involving questions of interpretation of the regulations.
Court of Appeal of Genoa, 28 March 2022, no. 335
The duty of summary statement of the grounds of the decision imposed on arbitrators by Article 823(5) of the Code of Civil Procedure, the non-fulfilment of which integrates the possibility of challenging the award pursuant to Article 829(1)(5) of the Code of Civil Procedure can be considered as not satisfied only when the reasoning is completely lacking or is so deficient as to make it impossible to understand the logic behind the arbitral decision or contains irreconcilable contradictions in the body of the grounds or the operative part such as to render the ratio of the decision incomprehensible.
Court of Appeal of Palermo, 28 March 2022, no. 517
In arbitration proceedings, the question of the breach of cross-examination must be examined not from a formal point of view, but in the context of an investigation aimed at ascertaining an actual impairment of the possibility to infer and contradict, in order to verify whether the act has also achieved the purpose of establishing a regular cross-examination and whether, in any case, the breach has not caused prejudice to the party.
Court of Appeal of Venice, 28 March 2022, no. 700
In the proceedings challenging an arbitral award on grounds of nullity, the jurisdiction to hear the merits, after the rescinding phase has been exhausted, presupposes an award issued by arbitrators effectively vested with potestas iudicandi. Where the award emanates from arbitrators without the power to adjudicate, the task of the appellate court is not that of renewing the arbitral judgement more correctly, but to eliminate from the legal reality the decision issued by a panel not invested with the power to resolve the dispute, the jurisdiction to decide on the merits remaining determined by the general rules of the code of procedure. A decision on the merits by the Court of Appeal would, in such cases, constitute a violation of the principle of dual jurisdiction, without the legal prerequisites being met.
Court of Appeal of Rome, 30 March 2022, no. 2084
The absolute defect of failure to state reasons for an award can be recognised only when the decision is completely lacking in reasoning or is so deficient as to make it impossible to understand the logic behind the arbitral decision or contains irreconcilable contradictions in the body of the grounds or the operative part of the decision such as to render the ratio of the decision incomprehensible.
Court of Appeal of Brescia, 7 April 2022, no. 449
In consideration of the jurisdictional nature of arbitration and its function as a substitute for ordinary jurisdiction, the objection of compromise has a procedural nature and integrates a question of competence, which must be raised by the party concerned, under penalty of forfeiture and consequent entrenchment at the court seized of the power to decide on the proposed claim, in the response and within the term set by article 166 of the code of civil procedure.
Court of Appeal of Messina, 7 April 2022, no. 227
Article 24 of the statutes of the Federazione Italiana Giuoco Calcio integrates an arbitration clause for informal arbitration, based, as such, on the consent of the parties, who, by adhering in full autonomy to the federal statutes, also accept subjection to the internal organs of justice.
Court of Appeal of Milan, 7 April 2022, no. 1196
The irritual arbitration award cannot be challenged for errors of law, but only for flaws that may affect any manifestation of negotiated will, such as error, violence, wilful misconduct or incapacity of the parties who conferred the task and of the arbitrator himself.
Court of Appeal of Milan, 8 April 2022, no. 1204
The irritual arbitration award cannot be challenged for errors of law, but only for flaws that may affect any manifestation of the will of the parties, such as error, violence, wilful misconduct or incapacity of the parties who conferred the task and of the arbitrator himself.
Court of Appeal of L’Aquila, 11 April 2022, no. 542
There is a violation of the right to be heard, relevant as a ground for nullity of the award, where the arbitral tribunal has awarded and liquidated, without the parties having had the opportunity to discuss the matter, a sum based on a title (indemnity) never put forward by the parties, which has no basis in the claims formulated by them (compensation for damages pursuant to articles 1223 and 2043 of the Civil Code).
Court of Appeal of Naples, ord. 12 April 2022
The special procedure provided for in Article 814(2) of the Code of Civil Procedure. for the judicial liquidation of the costs and fees due to arbitrators has as its sole object just such liquidation, which presupposes only that the petitioning arbitrator has carried out his task and, according to the opinion prevailing by far, has pronounced the award, and therefore does not allow the President of the Court to inquire into the existence, validity and scope of the compromise or arbitration clause, nor into the regularity of the appointment of the arbitrator, nor into the correctness of the latter’s performance, nor into the validity of the award rendered by him. All issues relating to these profiles can only be asserted by means of the different instrument of challenging the award provided for by article 829 of the Code of Civil Procedure and to the extent permitted by it, except for that concerning the arbitrator’s possible liability for damages, to be asserted by means of a specific action, which, in turn, presupposes that the award is annulled by a final judgment.
Court of Appeal of Turin, 12 April 2022, no. 402
Article 819-ter of the Code of Civil Procedure subjects the objection of arbitration to the same regime provided for the objection of lack of jurisdiction, stating that it must be raised, under penalty of lapse of time, in the statement of defence, and specifying that failure to raise the objection excludes arbitral jurisdiction limited to the dispute decided in that case; the lack of a specific indication as to the time limit within which the objection must be raised requires reference to the general rules set out in article 38 of the Code of Civil Procedure, which provides that a plea of lack of jurisdiction, whether by subject-matter, by value or by territory, must be raised, under penalty of lapse of time, in the response filed in due time.
Court of Appeal of Milan, 13 April 2022, no. 1245
On the subject of derivative contracts, the lack of knowledge on the part of the investor entails the nullity of the transaction, due to lack of cause or indefiniteness of the object; such principle, however, has no relevance on the public policy front, not even on the economic public policy front, as it pertains to the private regulation of the chosen contractual programme, so that its breach is not relevant, pursuant to Article 829, para. 3, of the Code of Civil Procedure, in the context of an appeal against a ritual arbitration award.
Court of Appeal of Naples, 26 April 2022, no. 1744
On the subject of challenging an arbitral award, Article 829(1)(11) of the Code of Civil Procedure does not concern the hypothesis of inconsistency in the grounds of the award, but rather those of contrast between various parts of the operative part of the award that are so contradictory and irreconcilable as to render the ruling substantially unenforceable, or of irreconcilable contrast between the grounds and the operative part; the defect referred to in the aforementioned provision may also consist in contradictory grounds that are so serious as to render the grounds absolutely incomprehensible and thus result in their substantial non-existence.
Court of Appeal of L’Aquila, 22 June 2022, no. 894
In the presence of a contractual clause containing both an arbitration agreement and an indication of exclusive jurisdiction, it is for the plaintiff to choose whether to bring the case before the arbitrators or the state court.
Court of Appeal of Messina, 24 June 2022, no. 411
In the presence of a compromise aimed at settling a dispute, the ancillary sentence falls within the jurisdiction of arbitration, which is not excluded by the circumstance that the party activating the compromise has made a request for mere ascertainment.
Court of Appeal of Messina, 24 June 2022, no. 435
Among the disputes relating to a novation settlement agreement that are subject to arbitral jurisdiction are also those that have their origin in the novated contractual relationship.
Court of Appeal of Milan, 24 June 2022, no. 2230
Since the enforcement phase takes place in the absence of the debtor, the state judge must issue the requested injunction; however, if the debtor in the opposition phase objects to the arbitral jurisdiction, the judge must necessarily declare the injunction null and void and decline jurisdiction.
Also in this situation there is no reason whatsoever to derogate from the principle of law according to which the costs of litigation follow the award of costs, and it is obvious that the pronouncement of nullity of the injunction precludes the possibility of awarding the opposing party the costs of the same as liquidated by the judge of the monitorio.
Court of Appeal of Naples, ord. 28 June 2022
When deciding on an application to suspend the enforceability of an appealed award, a comparative assessment must be made of the dangers arising from the possible enforcement of the award and, respectively, its postponement to a future and uncertain date.
Court of Appeal of Potenza, 28 June 2022, no. 418
In order to assess the timeliness of the declaration of the arbitrators’ disqualification for not having ruled within the time limit for the pronouncement of the award, the date on which the arbitrators signed the award must be taken into account.
Court of Appeal of Brescia, 29 June 2022, no. 804
The constitution of the arbitration panel is not necessary to determine lis pendens. In fact, the arbitration proceedings are pending from the moment of the notification of the request for arbitration.
Court of Appeal of Florence, 29 June 2022, no. 1400
Where an arbitration clause devolves to arbitrators the jurisdiction over certain contractual disputes only, it cannot be held applicable to disputes other than those specifically identified.
Court of Appeal of Naples, 29 June 2022, no. 3046
In the event of a dispute being referred to an arbitration panel, the defect of potestas iudicandi of the deciding panel, in order for the arbitration agreement to be null and void, must be objected to in the first defence following the acceptance of the arbitrators, so that, failing that, the alleged invalidity degrades to a sanctionable nullity.
The clauses included in a contract stipulated by public deed, even if they comply with the conditions set by one of the contracting parties, cannot be considered as prepared by the same contracting party pursuant to Article 1341 of the Italian Civil Code and, therefore, even if vexatious, such as an arbitration clause, do not require specific approval.
Court of Appeal of Florence, 1 July 2022, no. 1422
The arbitration clause in the articles of association cannot be deemed applicable to any dispute arising between the shareholders, but only to those arising out of corporate relations, as it cannot be extended to disputes that would affect them due to personal relations.
Court of Appeal L’Aquila, 4 July 2022, no. 1001
It must be declared null and void an arbitral award that has pronounced outside the scope of the arbitration clause (in the present case, on an inheritance issue related to the one subject to arbitration).
Court of Appeal of L’Aquila, 4 July 2022, no. 1010
In the presence of a final judgment that has recognised the validity and effectiveness of an arbitration clause and thus the arbitral competence to decide the dispute, the latter cannot be called into question, even where the clause is null and void for breach of Article 34 of Legislative Decree 5/2003.
Court of Appeal of Rome, 4 July 2022, no. 4603
An award cannot be qualified as an award, and therefore cannot be challenged, if the arbitral tribunal has declared the pending proceedings extinct in the absence of the elements required by Article 823 of the Code of Civil Procedure.
Court of Appeal of Florence, 5 July 2022, no. 1427
The sanction of nullity provided for in Article 829, para. 1, no. 11 of the Code of Civil Procedure for an award containing contradictory provisions does not correspond to that of Article 360, para. 1, no. 5 of the Code of Civil Procedure, but is to be understood in the sense that such inconsistency must arise between the different components of the operative part, i.e. between the grounds and the operative part, while internal inconsistency between the different parts of the grounds, not expressly provided for among the defects entailing the nullity of the award, may be relevant as a defect of the award only to the extent that it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons traceable to its functional model.
The assessment of the facts put forward and the evidence acquired in the course of the arbitral proceedings cannot be challenged, since such an assessment is negotiated within the institutional competence of the arbitrators. Consequently, an appeal is to be considered inadmissible where the merits of the dispute are directly and immediately set forth, as in the case of a proper appeal on the merits and with free grounds.
Court of Appeal of Rome, 5 July 2022, no. 4636
The sanction of nullity provided for in Article 829(1)(11) of the Code of Civil Procedure for an award containing contradictory provisions does not correspond to that of Article 360(1)(5) of the Code of Civil Procedure, but must be understood in the sense that such inconsistency must arise between the different components of the operative part, i.e. between the grounds and the operative part, while internal inconsistency between the different parts of the grounds, not expressly provided for among the defects that lead to the nullity of the award, can be relevant as a defect of the award only to the extent that it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons traceable to its functional model.
Court of Appeal of Venice, 18 July 2022, no. 1665
The sending by the president of the arbitral tribunal to the other arbitrators of a draft award before holding the case for decision is not a ground for nullity. In fact, the requirement that the award, as the final act of the arbitral proceedings, must be pronounced by a majority vote of the arbitrators, with the participation of each of them in the decision-making process, does not exclude that such final outcome may be reached on the basis of the written fixation of certain points of the decision or, even, on the basis of a draft of the award, to be then submitted to the plenary meeting for discussion and decision.
Court of Appeal of Florence, 19 July 2022, no. 1503
On the subject of arbitration, the first sentence of Article 819-ter(1) of the Code of Civil Procedure in providing that the jurisdiction of the arbitrators is not excluded by the connection between the dispute referred to them and a case pending before an ordinary court, implies, with reference to the hypothesis in which a plurality of claims have been brought, that the existence of arbitral jurisdiction must be verified with specific regard to each of them, since the entire dispute cannot be referred to the arbitrators (or to the ordinary court) by virtue of the mere connection.
Court of Appeal of Ancona, 20 July 2022, no. 965
In the field of arbitration, the ground of appeal for nullity of the award under the combined provisions of Articles 829(1)(5) and 823(2)(5) of the Italian Code of Civil Procedure can be recognised only if the grounds are completely lacking or are so deficient that the ratio decidendi cannot be understood and identified. If, on the contrary, such ratio is in some way traceable, the legal obligation to state reasons for the arbitral award is to be considered fulfilled.
Court of Appeal of Naples, 22 July 2022, no. 3438
The contractual clause contained in an association contract does not devolve to arbitration disputes arising between the member and the association relating to the latter’s non-contractual liability.
Court of Appeal of Milan, 25 July 2022, no. 2609
The recall en bloc of all or a large part of the general terms and conditions of the contract, including those lacking vexatious character, and the indiscriminate signing of the same, even if affixed under their listing according to the order number, does not determine the validity and effectiveness, pursuant to Art. 1341, para. 2, of the Italian Civil Code, of the onerous ones, as it cannot be held that in such a case the attention of the weaker party to the clause unfavourable to him included among those recalled is guaranteed.
Court of Appeal of Messina, 3 August 2022, no. 522
In the case of an appeal for nullity of an arbitration award, which is a case of limited criticism, which may be brought within the limits established by article 829 of the code of civil procedure, the rule of specificity in the formulation of grounds is applicable, in consideration of the rescinding nature of such a judgement and of the fact that only compliance with this rule can allow the judge and the defendant to verify whether the objections formulated correspond exactly to the cases of appealability established by article 829 of the code of civil procedure.
Court of Appeal Milan, 5 August 2022, no. 2704
In order for there to be an obligation of specific approval in writing of the arbitration clause for ritual arbitration pursuant to Art. 1341(2) of the Italian Civil Code, it is necessary that the clause be included in the contractual agreement. (2) of the Civil Code, the clause must be included in the general terms and conditions of the contract, by which is meant those established to serve an indefinite series of relationships, both from a substantive point of view (because they are drafted by a contracting party that performs contractual activity for an undifferentiated plurality of parties) and from a formal point of view (i.e., where they are predetermined in terms of content by means of forms or forms that can be used in series).
Art. 1341(2) of the Civil Code is not applicable in the case of international arbitration, since it is derogated in favour of the application of Art. 2 of the New York Convention which, for the validity of the arbitration clause, does not require specific approval, but merely the written form.
Court of Appeal of Rome, 10 August 2022, no. 5327
Failure to bring an action for annulment of the foreign award before the courts of the State of origin (in the present case, for alleged violation of the principle of cross-examination) entails an implicit waiver of the possibility of subsequently raising such a ground in opposition to recognition of the award.
The (peremptory) grounds of opposition to recognition of a foreign award must be interpreted restrictively, the rule that recognition must be mandatory being an established rule in doctrine and case-law.
In particular, the New York Convention and art. 840 of the Code of Civil Procedure aim to penalise any violation of the principle of cross-examination and the right of defence when such violation has harmed the party opposing recognition of the award, and the violation must take place through circumstances that have concretely harmed the party opposing recognition, having made the latter’s defence radically impossible, and not when, instead, there has been a mere difficulty in exercising its rights of defence.
Court of Appeal of Milan, 12 August 2022, no. 2730
Since informal arbitration is configured as a negotiated dispute resolution tool, hinged on entrusting third parties with the task of seeking an amicable settlement of the dispute, the relative award can be challenged only for defects of will (fraud, violence or error) or for incapacity of the parties or of the arbitrators and, therefore, without being able to deduce the errores in iudicando or the (complained of) erroneous interpretation of the contract subject matter of the arbitration.
Court of Appeal of Palermo, 17 August 2022, no. 1405
In the case of an appeal on the grounds of nullity of an arbitral award, which is a case of limited criticism that can be brought within the limits established by article 829 of the Italian Code of Civil Procedure, the rule of specificity in the formulation of grounds is applicable, in view of the rescinding nature of such a judgement and the fact that only compliance with this rule can allow the judge and the defendant to verify whether the objections formulated correspond exactly to the cases of appealability established by article 829 of the Italian Code of Civil Procedure.
Court of Appeal of Turin, 24 August 2022, no. 926
Article 808-ter of the Code of Civil Procedure states that the parties, by express written provision, may refer the dispute to arbitrators for settlement by contractual determination.
Court of Appeal of Milan, 26 August 2022, no. 2769
On the subject of an appeal against an arbitral award, the defect of reasoning, as a defect attributable to Article 829(5) of the Code of Civil Procedure, (5) of the Code of Civil Procedure, in relation to Article 823(3) of the same code, can be found only where the grounds of the award are either completely lacking or so deficient as not to enable the reasoning of the decision to be identified or, in other words, to denote an argumentative process that is totally unacceptable at the dialectical level, resulting in a non-motivation.
Article 829(11) of the Code of Civil Procedure provides for the nullity of the award not for every case of mere contradiction between the various points of the grounds or their insufficiency, but only when there is a contradiction between the various statements of the operative part, or a contradiction between the grounds and the operative part that results in the impossibility of understanding the ratio decidendi of the decision, equivalent to a substantial absolute lack of grounds.
Court of Appeal of Perugia, 29 August 2022, no. 441
The self-assessment of the arbitration fee has the value of a simple contractual proposal.
Court of Appeal of Salerno, 29 August 2022, no. 1098
The only procedural means to contest the decision by which the Court of First Instance has declined its potestas iudicandi, without, therefore, settling the dispute between the parties, is the necessary regulation of jurisdiction, to be brought before the Court of Cassation pursuant to Article 47 of the Code of Civil Procedure, and not the ordinary appeal, which can be brought, pursuant to Article 43, para. 1 of the Code of Civil Procedure, in the different hypothesis in which the decision of the Court of First Instance has not been contested by the Court of Cassation, in the different hypothesis in which the decision at first instance concerned not only the jurisdiction of the court seised, but also the merits of the case.
Court of Appeal of Bari, 30 August 2022, no. 1269
Arbitration is an exception in the strict sense of the word, and as such, for its timely formulation, it must be raised with the introduction, and in the case of an exception raised by the defendant, with the statement of appearance and response at first instance, filed within the term provided for by article 166 of the code of civil procedure.
Court of Appeal of Milan, 6 September 2022, no. 2837
The sanction of nullity provided for in Article 829(11) of the Code of Civil Procedure for an award containing contradictory provisions does not correspond at all to that of Article 360(5) of the Code of Civil Procedure, No. 5 of the Code of Civil Procedure, but is understood by doctrine and jurisprudence to mean that such inconsistency must arise between the different components of the operative part; that is, between the grounds and the operative part, while inconsistency between the different parts of the grounds, not expressly provided for among the defects that lead to the nullity of the award, can be relevant only insofar as it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons that can be traced back to its functional model.
Court of Appeal of Cagliari (Sassari division), 9 September 2022, no. 269
The dies a quo from which the term of one year starts, provided for by article 828, para. 2, code of civil procedure, for challenging the arbitral award coincides with the date of its signature by the arbitrators, given that it is from that date that the award produces the same effects as the judgement pronounced by the judicial authority, while it does not start from any subsequent communication of the award to the parties nor from its filing with the court registry pursuant to article 825 of the code of civil procedure.
Court of Appeal of Naples, 9 September 2022, no. 3718
The reconstruction of the scope of the clause on the basis of the will of the compromising parties, rather than limited to the literal meaning of the words, in application of the criteria set forth in Article 1362 of the Italian Civil Code, operates with reference to the identification in the arbitration clause of abstract facts or generic legal definitions, i.e. whenever the identification of the scope of the clause necessarily presupposes an interpretation of its scope.
Court of Appeal of L’Aquila, 16 September 2022, no. 1231
The time limit for challenging the award for nullity starts to run from the date of the last signature and the date of its communication is irrelevant.
Court of Appeal Naples, 16 September 2022, No. 3812
The submission of an appeal based on manifestly unfounded grounds or on reasons expressed through inadmissible grounds (in the case at hand, an appeal against a ritual award consisting in the mere contestation of the decision on the merits, in the absence of any reference to the grounds of appeal pursuant to Article 829 of the Italian Code of Civil Procedure) highlights the failure to use the due diligence and care in submitting the appeal and therefore constitutes a case of liability pursuant to Article 96 of the Italian Code of Civil Procedure.
Court of Appeal of Florence, 19 September 2022, no. 2028
Jurisdiction arises on the basis of the party’s submissions, therefore where the plaintiff traces the claim asserted to a contractual relationship that includes an arbitration clause, the arbitrators are competent to decide the relative dispute.
Court of Appeal of Milan, 20 September 2022, no. 2925
Even in the case of an appeal for breach of the rules of law relating to the merits of the dispute, the review of the judgment challenging the arbitral award cannot extend to a re-examination of the facts of the case, but must rather be directed to verifying any errors committed by the arbitrators in the interpretation and application of the rules of law relevant to the case submitted to their examination. This permitted review includes the scrutiny of legal assessments made by the arbitral tribunal in contrast with principles that, affirmed by the Supreme Court of Cassation in the full performance of its nomofilactic function, contribute to forming living law.
Court of Appeal of Perugia, 20 September 2022, no. 471
The arbitration clause that devolves to the arbitrators the issues relating to the performance of the contract, in this case in particular the payment of the fees allegedly not paid, automatically devolves to them also any assessment on the unavoidable prerequisite of the request for performance, i.e. the validity of the contract, which in any case can be raised ex officio also in the arbitration proceedings.
Court of Appeal of Cagliari, Sassari section, 20 September 2022, no. 291
The dies a quo from which the term of one year starts, provided for by article 828, para. 2, code of civil procedure, for challenging the arbitral award coincides with the date of signature by the arbitrators, since it is from that date that the award produces the same effects as the judgment pronounced by the judicial authority.
Court of Appeal of Palermo, 21 September 2022, no. 1576
The arbitration clause must be specifically approved in writing, pursuant to Article 1341(2) of the Italian Civil Code, even in the case of contracts entered into by the public administration for clauses unilaterally drafted by the latter.
Court of Appeal of Rome, 21 September 2022, no. 5792
In order for Article 1341 of the Civil Code, which requires the double signature of the arbitration clause, to apply, it is not sufficient that the contractual clauses were unilaterally drafted by one of the contracting parties.
Court of Appeal of Turin, 28 September 2022, no. 1017
The pronouncement of a ritual award where the parties have provided for an informal arbitration entails the nullity of the award itself as it was pronounced outside the limits of the arbitration agreement (art. 829, para. 1, no. 4 of the Code of Civil Procedure), which did not allow the arbitrators to issue a ritual award. Given the reason for the ascertained nullity, no rescissory judgment is allowed.
Court of Appeal of Catania, 28 September 2022, no. 1841
The lack of jurisdiction of the Italian court, as a consequence of an arbitration clause for foreign arbitration, is not ex officio detectable, given the inescapable voluntary nature of arbitration by virtue of which the parties, even in the presence of an arbitration clause, may always agree to opt for a decision by the ordinary court, even tacitly, by introducing the ordinary proceedings to which the failure to raise the objection of compromise is counterbalanced, nor, in the case of default of the defendant, is art. Article 11 of Law 218 of 31 May 1995, which does not expressly contemplate the hypothesis that a foreign arbitration agreement underlies the lack of jurisdiction, is not applicable.
Court of Appeal of Ancona, 29 September 2022, no. 1217
The denunciation of flaws based on the violation of procedural rules is not to be seen in the self-referential function of protecting the interest in the abstract regularity of the procedural activity, but only guarantees the elimination of the prejudice suffered by the party’s right of defence as a result of the violation denounced. In particular, an award that decides a question of pure law, raised ex officio, without informing the parties in order to allow discussion of the matter (so-called third way), is not per se null and void, since such omission can only give rise to an error in iudicando, or an error in iudicando de iure procedendi, the notification of which allows the award to be set aside only if such error is actually committed. If, on the other hand, the issue is one of fact, or a mixture of fact and law, the losing party may complain about the decision by claiming that the breach of the duty to disclose has violated the right to ask for evidence or, hypothetically, to obtain a possible extension of time.
Court of Appeal of Turin, 3 October 2022, no. 1035
For the purposes of identifying the means by which the award must be challenged, what matters is the nature of the act actually performed by the arbitrators, rather than the nature of the arbitration as envisaged by the parties; therefore, if a ritual award has been pronounced despite the fact that the parties had envisaged an informal arbitration, it follows that that award is challengeable exclusively pursuant to articles 827 et seq. of the Code of Civil Procedure.
The principle of the autonomy of the arbitration clause, which has been affirmed in cases of nullity of the contract to which the clause accedes, in order to affirm its survival, cannot be applied to the different case where the elimination of the clause is a consequence of the elimination of the contract by the parties who, in fully reorganising their relations, do not again provide for the exception to the jurisdiction of the ordinary courts.
Court of Appeal of Campobasso, 5 October 2022, no. 241
Irregular award is not subject to the appeal regime provided for the ritual one by articles 827 et seq. of the Italian Code of Civil Procedure, but to negotiated appeals, with reference both to the validity of the arbitration agreement and to the activity of the arbitrators, to be submitted in compliance with the ordinary rules on jurisdiction and the dual level of jurisdiction.
Court of Appeal of Turin, 6 October 2022, no. 1046
The invalidity of the substantive contract to which the agreement accedes does not extend to the arbitration clause, which does not constitute an accessory element of the contract to which it is attached, but has its own individuality and autonomy, clearly distinct from that of the contract to which it accedes, so that any causes of invalidity of the substantive contract do not extend to it and the arbitration clause remains valid and effective.
Court of Appeal of Florence, 7 October 2022, no. 2207
The fact that the parties have entrusted the arbitrators with the task of reaching a decision without procedural formalities suggests that arbitration is of an informal nature. In fact, the reference is unequivocally to the fact that the arbitrators would not be subject to compliance with the rules of the code of civil procedure, which is a typical element of informal arbitration.
Court of Appeal of Messina, 7 October 2022, no. 636
The sanction of nullity provided for an award containing contradictory provisions under Article 829, para. 1, no. 11 of the Code of Civil Procedure must be understood in the sense that such inconsistency must arise between the different components of the operative part or between the grounds and the operative part, while internal inconsistency between the different parts, which is not expressly provided for among the defects entailing the nullity of the award, may be considered as a defect of the award only if it makes it absolutely impossible to reconstruct the logical and legal background of the decision due to the total absence of grounds that can be attributed to its functional model.
Court of Appeal of Turin, 12 October 2022, no. 1080
The public order to which Article 829(3) of the Code of Civil Procedure refers coincides with the fundamental rules and principles of the legal system.
The requirement of contrariety with public policy must be found with reference to the dispositive part, in which the decisum of the arbitral award is summarised, and even if, to this end, it is permitted to examine the content of the award, this can never result in a review of the grounds, which would give rise to a review on the merits.
Court of Appeal of Rome, 18 October 2022, no. 6480
The sanction of nullity provided by Article 829, para. 1, no. 11 of the Code of Civil Procedure for the award containing contradictory provisions must be understood in the sense that such contradiction must emerge between the different components of the operative part, i.e. between the grounds and the operative part, while the internal contradiction between the different parts of the grounds, not expressly provided for among the defects that lead to the nullity of the award, can assume relevance, as a defect of the award, only insofar as it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons referable to its functional model.
Court of Appeal of Bari, 19 October 2022, no. 1537
The assessment of the facts deduced and of the evidence acquired during the arbitral proceedings cannot be challenged by means of an appeal for nullity of the arbitral award, since such assessment is negotiatedly referred to the institutional competence of the arbitrators.
Court of Appeal of Milan, 24 October 2022, no. 3333
Article 36 of Legislative Decree No. 5/2003 provides that disputes concerning the validity of shareholders’ meeting resolutions must be decided according to law and with a non-appealable award, even where a clause authorising a decision according to equity and with a non-appealable award is provided for. Therefore, where the arbitration clause in the by-laws provides for irritual arbitration, this is converted pursuant to Article 1418 of the Italian Civil Code into usual arbitration.
Court of Appeal of Perugia, 25 October 2022, no. 557
An appeal against the court’s decision declining its jurisdiction in favour of the arbitrators is not admissible, since the latter’s activity is of a jurisdictional nature and substitutes the function of the ordinary judge, so that the relative question can only be raised by regulation of jurisdiction.
Court of Appeal of Perugia, 25 October 2022, no. 559
On the subject of arbitration, the inconsistency referred to in Article 829, para. 1, no. 11 of the Code of Civil Procedure does not correspond to that referred to in Article 360, para. 1, no. 5 of the Code of Civil Procedure, in the text prior to the current one, but is to be understood in the sense that the contrast must emerge between the different components of the operative part, i.e. between the grounds and the operative part, while the internal contradiction between the different parts of the grounds is not a defect as such, but only when it prevents the reconstruction of the logical and legal process underlying the decision due to the total absence of a reasoning traceable to its functional model.
Court of Appeal of Perugia, 26 October 2022, no. 562
The double signature in the presence of clauses pursuant to Art. 1341 of the Italian Civil Code (including the arbitration clause) is required when the contract requires the written form for its validity, because with the first, the adherent manifests the will to accept the content of the general terms and conditions that are not onerous, with the second, to be affixed specifically, approves the content of the vexatious ones. The double signature becomes, on the other hand, superfluous when the contract as such does not require ad substantiam the signature, and this is affixed precisely and specifically with regard to the clause that is vexatious in nature, which for that reason alone assumes the written form.
Court of Appeal of Florence, 4 November 2022, no. 2425
Article 808-quater of the Code of Civil Procedure sets forth a general principle according to which in case of interpretation doubt, the arbitration agreement must be interpreted extensively, i.e. in the sense that the arbitrators’ jurisdiction must be understood as extending to all disputes arising from the contract or relationship to which the agreement refers.
Court of Appeal of Milan, 4 November 2022, no. 3466
The principle enunciated by the Court of Cassation with reference to proceedings before the state court, according to which an exception is made to the rule that the service of a judgment has no equivalent when the party has not only acquired legal – and not mere factual – knowledge of the notified act, but has acquired it by an act intended only to provoke the appeal, or to challenge it, is also applicable to the challenge of arbitral awards.
Court of Appeal of Perugia, 4 November 2022, no. 540
The circumstance that the person to whom the parties have entrusted the appointment of arbitrators cannot be found at the address indicated in the arbitration clause has no consequences on the validity of the arbitration clause.
Court of Appeal of Rome, 4 November 2022, no. 6968
When challenging an arbitration award on grounds of nullity, pursuant to articles 828 et seq. of the Italian Code of Civil Procedure, the Court of Appeal cannot ex officio find grounds not deduced in the notice of appeal – except for the nullity of the arbitration agreement and the arbitration clause – since the appeal is strictly limited and bound, in its devolving effect, to the court hearing it, both in the abstract, by the typical nature of the deductible defects, and in the concrete, by those expressly and specifically deduced.
Court of Appeal of Bari, 7 November 2022, no. 1595
An appeal for nullity of an arbitral award does not constitute a normal appellate proceeding since, in such a procedural context, the Court of Appeal is not called upon to confirm or reform the first instance decision rendered by an ordinary judge (which does not exist in this case), but has, first and foremost, the task of verifying whether the decision rendered by a body other than the state body, to which the parties have entrusted the resolution of the dispute between them, is invalid for one of the reasons peremptorily indicated by law.
Court of Appeal of Rome, 7 November 2022, no. 7007
Article 814 of the Italian Code of Civil Procedure configures a contractual mechanism for determining the arbitrators’ fees, marked by the arbitrators’ self-assessment, which has the value of a contractual proposal that, in order to bind the parties to the proceedings, must be accepted by them and cannot be freely revoked by the parties, but remains firm until, in the absence of acceptance, it is succeeded by a judicial determination at the request of the arbitrators themselves, in order to acquire a (non-contractual but) judicial and therefore imperative and enforceable title. It follows that, when it has not accepted the settlement proposal, the party is not bound to pay the fees for the arbitrators and for the functioning of the arbitration board, and therefore has no interest in appealing against the part of the arbitral award relating to the settlement of the legal costs and fees of the case as well as the settlement of the arbitrators’ fees, the secretary’s fee and the board’s operating expenses.
Court of Appeal of Milan, 8 November 2022, no. 3492
Disputes relating to the updating of the rent of a property intended for use other than residential use may be referred to arbitrators, given that Article 54 of Law 392/1978, which prohibited such disputes from being submitted to arbitration, was repealed by Article 14(4) of Law 431/1998, also with reference to disputes relating to the updating of the rent of a property intended for use other than residential use. 431/1998 also with reference to non-housing leases; and considered, on the other hand, that the mandatory nature of the rules on the updating of the rent laid down by articles 32 and 79 of Law 392/1978, although designed to prevent the preventive circumvention of the tenant’s rights, does not mean that they are unavailable once they have arisen and can be asserted, so that the disputes in question are not subject to the prohibition on arbitration laid down by article 806 of the Code of Civil Procedure.
Court of Appeal of Salerno, 9 November 2022, no. 1474
The internal contradiction between the different parts of the grounds, not expressly provided for among the vices entailing the nullity of the award, can assume relevance, as a flaw of the award, only insofar as it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of a statement of reasons traceable to its functional model.
Court of Appeal of Messina, 14 November 2022, no. 723
The sanction of nullity provided for an award containing contradictory provisions under Article 829, para. 1, no. 11 of the Code of Civil Procedure. must be understood in the sense that such inconsistency must arise between the different components of the operative part or between the grounds and the operative part, while internal inconsistency between the different parts, not expressly provided for among the defects entailing the nullity of the award, may assume relevance, as a defect of the award, only insofar as it determines the absolute impossibility of reconstructing the logical and legal process underlying the decision due to the total absence of grounds traceable to its functional model.
Court of Appeal of Rome, 14 November 2022, no. 7227
The sole purpose of the proceedings challenging an arbitral award is to verify the legitimacy of the decision rendered by the arbitrators, not to review the issues on the merits submitted to them, so that the findings of fact made by the arbitrators, such as those concerning the interpretation of the contract at issue, cannot be censured in the proceedings challenging the award, unless the reasoning on this point is completely lacking or absolutely deficient.
Court of Appeal of Rome, 15 November 2022, no. 7245
The 2006 legislature, in reversing the relationship between rule and exception for challenging an award for breach of the rules of law relating to the merits of the dispute, wished to strengthen the stability of the award by extending to domestic arbitration a rule provided for in the transnational field, where public policy has always been identified with the fundamental rules and principles of the legal system.
Court of Appeal of Salerno, 15 November 2022, no. 1502
On the subject of the interpretation of an arbitration agreement, the doubt as to the actual will of the contracting parties must be resolved in the sense of the rituality of the arbitration in view of the exceptional nature of the exception to the rule whereby the award has the effect of a court judgment.
Court of Appeal of Milan, 16 November 2022, no. 3622
The appellate court’s field of cognition, in the case in which the defect of contradictory provisions provided for in Article 829 no. 11 of the Code of Civil Procedure is deduced, concerns the contrast between the different parts of the award and the parties to it, concerns the conflict between the different parts of the operative part of the award, which by their irreconcilability make it impossible to enforce the award, as well as, according to the most extensive interpretation, the inconsistency between the grounds and the operative part of the award or between different parts of the grounds, only when the inconsistency results in the absolute impossibility of reconstructing the ratio decidendi, with the consequent substantial absence of grounds that can be attributed to its functional model.
Court of Appeal of Catania, 17 November 2022, no. 2159
On the subject of appealing against an arbitral award, the defect of reasoning, as a defect falling under Article 829 no. 5 of the Code of Civil Procedure, in relation to Article 823 no. 3 of the same code, can only be recognised when the grounds of the award are completely lacking or are so deficient as not to allow the identification of the ratio of the decision adopted or, in other words, to denote an argumentative process that is absolutely unacceptable on a dialectical level, so as to result in a non-motivation.
Court of Appeal of Milan, 21 November 2022, no. 3661
The right of withdrawal, regulating purely pecuniary aspects, represents a disposable right and is therefore an arbitrable matter.
The concept of public order referred to in Article 829(3) of the Italian Code of Civil Procedure cannot be confused with the collective or public interest, since it is a selective and circumscribed set of essential principles – much narrower than those assigned in other areas of the legal system – so that it cannot be considered to be supplemented by mere violations of mandatory rules, which can be censured only within the limits sanctioned by the first sentence of the provision (i.e. by express agreement of the parties or provision of law).
Court of Appeal of Milan, 22 November 2022, no. 3665
Article 829(2)(11) of the Code of Civil Procedure provides for the nullity of the award not for every case of mere contradiction between the various points of the grounds or insufficiency thereof, but only when there is a contradiction between the various statements of the operative part, or a contradiction between the grounds and the operative part that results in the impossibility of understanding the ratio decidendi of the decision, equivalent to a substantial absolute lack of grounds.
Court of Appeal of Florence, 23 November 2022, no. 2636
Disputes in corporate matters may, as a general rule, be the subject of compromise, with the exclusion of those that have as their object the interests of the company or that concern the violation of rules protecting the collective interest of shareholders or third parties. To this end, however, the area of non-disposability must be considered circumscribed to those interests protected by mandatory rules, the violation of which determines a reaction of the system free from any party initiative, such as the rules aimed at ensuring the clarity and accuracy of the financial statements.
Court of Appeal of Naples, 25 November 2022, no. 4986
Since in informal arbitration the parties intend to entrust the arbitrator with the resolution of a dispute through a strictly negotiated instrument – by means of an amicable settlement or a declaratory transaction attributable to their will – undertaking to consider the arbitrators’ decision as the expression of such personal will, an appeal for nullity of an award is not admissible, even though the decision has been filed and made enforceable pursuant to Art. 825 of the Code of Civil Procedure, while only an action for (possible) defects of the agreement is legitimately admissible, to be brought in accordance with the ordinary rules on jurisdiction and the dual level of jurisdiction.
Court of Appeal of Rome, 25 November 2022, no. 7543
The inadmissibility of an appeal brought before the Court of Appeal of an irritual award must be declared inadmissible.
Court of Appeal of Messina, 28 November 2022, no. 773
The non-appeal of the disclaimer of jurisdiction by the ordinary court and the consequent ruling formed on the jurisdiction of the arbitrators precludes any discussion not only of the underlying act (the arbitration clause), but also of the arbitral ruling that constitutes its development, if not challenged for reasons other than and in addition to those concerning jurisdiction.
Court of Appeal of Cagliari, 13 December 2022, no. 511
In the proceedings challenging an award, where the parties to the dispute have agreed on the ritual nature of arbitration and on the application to it (as parameters for evaluating the procedural process aimed at the adoption of the act of negotiating autonomy that corresponds to the decision of the arbitrators) of the civil procedural rules in force, the principles of case law on the settlement of procedural costs must – consequently – also be applied. Therefore, the decision of the arbitrators to identify the losing party and to award the costs of the proceedings is immune from criticism, given that the arbitrators were vested with a discretionary power that can be reviewed only if based on clearly illogical or inconsistent reasons and provided that the principle according to which the costs cannot be charged to the totally victorious party is not violated.
Court of Appeal of Bari, 13 December 2022, no. 1776
Irregular arbitration being an atypical institution, derogating from the typical institution regulated by law, and as such lacking the guarantees provided for this purpose by the legislator, in the absence of a derogatory will clearly inferable from the compromise or the arbitration clause, the referral to arbitrators of the solution of certain disputes constitutes an expression of the parties’ will to refer to the typical institution of arbitration, as regulated by the Code of Civil Procedure.
Court of Appeal of Bari, 16 December 2022, no. 1798
The arbitrator’s right to receive payment of the arbitrator’s fee arises from the fact that he has actually performed the task entrusted to him, within the framework of the mandate relationship between the parties and the arbitrators, and is independent of the validity and effectiveness of the award.
Court of Appeal of Venice, 20 December 2022, no. 2748
In the presence of an arbitration clause subsequent to the regulation introduced by Legislative Decree 40/2006, the silence of the parties regarding the possibility of an appeal for breach of the rules of law relating to the merits of the dispute leads to the exclusion of the possibility of such an appeal, since there is no express provision to that effect by the parties or the law.
Court of Appeal of Bari, 21 December 2022, no. 1844
For the purposes of the binding nature of the contractual condominium regulations and the arbitration clause contained therein, the transcription of the same is not necessary, provided that it has been referred to in the deed of purchase, as it must be deemed known or accepted on the basis of the reference or mention of it in the contract.
Court of Appeal of Venice, 22 December 2022, no. 2791
The provisions of Law 392/78 cannot be extended to the business lease contract, so that its non-application does not constitute a breach of public policy that can be challenged in an appeal against the arbitral award.
Court of Appeal of Milan, 23 December 2022, no. 4057
On the subject of an appeal against an arbitral award, the defect of reasoning, as a defect falling under Article 829(5) of the Code of Civil Procedure, in relation to Article 823(3) of the same code, can only be found in the event that the grounds of the award are completely lacking or are so deficient as not to allow the identification of the ratio of the decision adopted or, in other words, to denote an argumentative process that is absolutely unacceptable on a dialectical level, so as to result in a non-motivation.
Court of Appeal of Turin, 29 December 2022, no. 1353
On the subject of an appeal against an arbitral award, the defect of reasoning, as a defect falling under Article 829(5) of the Code of Civil Procedure, in relation to Article 823(3) of the same code, can only be recognised when the grounds of the award are completely lacking or are so deficient as not to allow the identification of the rationale of the decision adopted or, in other words, to denote an argumentative process that is absolutely unacceptable on a dialectical level, so as to result in a non-motivation.

Courts of first instance

Court of Turin, 3 January 2022, no. 19
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders “inaudita altera parte”), but requires the latter, in the event of a subsequent objection based on the existence of said clause, to declare the decree to be null and void and at the same time to refer the dispute to the arbitrators.
Court of Foggia, 4 January 2022 no. 2
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders “inaudita altera parte”), but requires the ordinary court, in the event of a subsequent objection based on the existence of such a clause, to declare the opposed decree null and void and at the same time to refer the dispute to the arbitrators.
Court of Vicenza, 4 January 2022, no. 9
The existence of an arbitration clause does not exclude the ordinary court’s jurisdiction to issue an injunction (given that the rules governing arbitration proceedings do not provide for the issuance of orders “inaudita altera parte”), but does require the ordinary court, in the event of a subsequent objection based on the existence of such a clause, to declare the decree null and void and at the same time to refer the dispute to the arbitrators.
Court of Aosta, 10 January 2022, no. 6
The existence of an arbitration clause does not exclude the ordinary court’s jurisdiction to issue an injunction (given that the rules governing arbitration proceedings do not provide for the issuance of orders “inaudita altera parte”), but does require the ordinary court, in the event of a subsequent objection based on the existence of such a clause, to declare the opposed decree null and void and at the same time to refer the dispute to the arbitrators.
Court of Turin, 10 January 2022, no. 55
In the presence of an arbitration clause in the articles of association devolving to arbitrators disputes relating to the interpretation of the articles of association, the dispute relating to the liquidation of the share of the withdrawn shareholder falls under the jurisdiction of the state court [per incuriam with respect to Art. 808-quater of the Italian Code of Civil Procedure and the relevant case law].
Court of Bologna, 13 January 2022, no. 62
Where an arbitration clause was expunged from the company’s bylaws prior to the filing of the lawsuit, the jurisdiction of the ordinary courts must be affirmed in respect of the disputes that – based on the aforementioned clause – would have been devolved to the jurisdiction of the arbitrators.
Court of Crotone, 13 January 2022, no. 27
The objection of compromise is of a procedural nature and integrates a question of jurisdiction that is not mandatory in nature, so as to justify its relief ex officio pursuant to Article 38(3) of the Code of Civil Procedure, since it is based solely on the will of the parties, who are free to choose whether or not to entrust the dispute to arbitrators. It follows that this exception must be formulated by the interested party, under penalty of lapse of time, in the response filed in due time.
Court of Bari, 14 January 2022, no. 174
The arbitral award of ascertainment, which does not contain any condemnatory head, does not constitute suitable grounds for enforcement, nor can such suitability derive from the circumstance that the award has been provided with exequatur ex art. 825 of the Code of Civil Procedure.
Court of L’Aquila, 18 January 2022, no. 6
The objection of compromise, in addition to being qualified by the prevailing case law as a procedural objection, is equated with that of lack of jurisdiction, whose legal regime it follows. It must therefore be raised in the timely filed response, pursuant to articles 166 and 167 of the code of civil procedure.
Court of Milan, 18 January 2022, no. 257
Disputes relating to the nullity of resolutions approving the company’s financial statements due to the unlawfulness of the subject matter, since they concern non-disposable rights, are not arbitrable.
Court of Rome, 24 January 2022, no. 1031
It does not preclude the operation of the arbitration clause if the party invoking it has undertaken numerous proceedings in breach of the clause.
Court of L’Aquila, ord. 27 January 2022
The suspension of shareholders’ meeting resolutions pursuant to Article 2378 of the Italian Civil Code cannot be requested prior to an appeal. Consequently, if the jurisdiction to hear appeals is assigned to an arbitration court, the latter must be seised in advance.
Court of Parma, 27 January 2022, no. 129
The arbitration clause that refers generically to disputes arising from the contract to which it relates shall be interpreted, in the absence of express will to the contrary, as meaning that all and only disputes having causa petendi in the same contract fall within the jurisdiction of the arbitral tribunal, excluding those that have, in it, only a historical premise, as in the present case where, despite the presence of the arbitration clause contained in a tender contract, the plaintiffs brought an action for non-contractual liability, pursuant to Article 1669 of the Italian Civil Code, claiming serious defects in the building, in which they had allegedly suffered serious damage to the building, and claiming that the contract had been terminated, alleging serious defects in the property purchased by them.
Court of Genoa, 31 January 2022, no. 217
The arbitration clause contained in a specific contract does not entail the referral to arbitrators of disputes relating to other contracts, even if related to the one containing the aforesaid clause.
Court of Novara, 31 January 2022, no. 49
The co-presence, in the same contract, of an arbitration clause and a forum clause does not determine the prevalence of the jurisdiction of the ordinary courts, nor the exclusion of that of the arbitrator. The two provisions must therefore be interpreted harmoniously, recognising state jurisdiction limited to the areas removed from arbitral jurisdiction.
Court of Tivoli, 1 February 2022, no. 144
In the presence of a statutory arbitration clause, a dispute concerning a contract for the transfer of shares falls within the jurisdiction of arbitration [per incuriam rispetto a Supreme Court, Sez. II Civ., 31 March 2014, no. 7501 and Supreme Court, Sez. I Civ., 25 June 2008, no. 17328].
Court of Ancona, 2 February 2022, no. 158
The arbitration clause in the articles of association, which concerns only disputes between shareholders or between shareholders and the company, does not apply to disputes between the company and the directors.
Court of Ancona, 2 February 2022, no. 169
The unilateral arbitration clause, which allows a single contracting party to decide whether to go to arbitrators or to the state court, is valid.
Court of Bologna, 2 February 2022, no. 240
In corporate matters, the appointment of the arbitral tribunal may be entrusted by the parties to a judicial authority that does not have territorial jurisdiction [by way of example, Court of Supreme Court, I Civil Division, 12 November 1992, no. 12188; but the point is controversial in doctrine].
Court of Ancona, 7 February 2022, no. 183
The arbitration clause in the articles of association, pursuant to Article 34(4) of Legislative Decree 5/2003, may attribute to the competence of arbitrators the disputes brought against the directors, but in the silence of the clause such disputes fall within the competence of the state court.
Court of La Spezia, 8 February 2022, no. 87
The existence of an arbitration clause does not preclude the pronouncement of the injunction decree, since the parties’ waiver of judicial protection cannot be detected ex officio by the judge hearing the injunction proceedings, but it does require the opposing judge, in the event of opposition based on the allegation of the existence of such a clause, to declare the nullity of the opposing injunction decree.
Court of Bolzano, 10 February 2022, no. 145
The irritual arbitration clause is not among those to be specifically approved in writing, pursuant to Articles 1341 and 1342 of the Italian Civil Code, as it does not derogate from the jurisdiction of the state court.
Court of Velletri, 10 February 2022, no. 285
The objection of lack of jurisdiction based on an arbitration clause does not introduce into the proceedings an issue that needs to be investigated with the possibility of constituting evidence, but must be decided on the basis of the available procedural results, as a distinction must be made between the issues concerning the merits of the case, to be decided at the outcome of the evidentiary investigation, and those relating to jurisdiction to be decided at the state of the proceedings.
Court of Vicenza, 14 February 2022, no. 253
The provisions of Article 34 of Legislative Decree No. 5/2003 apply only to commercial companies.
Court of Bari, 16 February 2022, no. 647
Disputes on the subject of the annulment of corporate resolutions may be devolved to the cognisance of irritual arbitrators.
Court of Patti, 16 February 2022, no. 88
In the presence of an arbitration clause in the articles of association, disputes between a shareholder and the company concerning a claim of the former against the latter fall within the jurisdiction of arbitrators [per incuriam].
Court of Syracuse, 21 February 2022, no. 301
Failure to activate the arbitration chambers affects the validity of the arbitration clause, resulting in the jurisdiction of the state court.
Court of Trani, 21 February 2022 no. 337
The arbitration clause contained in a company’s bylaws, which also devolves to arbitrators disputes between the director and the company, does not remove from the jurisdiction of the state court disputes between the director and the company, which find their causa petendi in a relationship other than that of administration.
Court of Catania, 24 February 2022, no. 936
There is, in principle, no incompatibility between bankruptcy and arbitration cognizance and this is because the vis actractiva of the bankruptcy forum does not extend to actions that are already in the bankrupt’s assets, at the time of the bankruptcy, and therefore could have been executed by the entrepreneur in bonis, in order to protect his own interest. The arbitration clause is, therefore, enforceable against the trustee in bankruptcy when he acts to recover a claim arising from a contract to which an arbitration clause attaches.
Court of Palermo, 24 February 2022, no. 835
Failure to challenge the disclaimer of jurisdiction of the ordinary courts and the consequent judgement formed on the jurisdiction of the arbitrators precludes any discussion not only on the act underlying it (the arbitration clause), but also on the arbitral ruling that constitutes its development, if not challenged for reasons further and different from those concerning jurisdiction.
Court of Ancona, 28 February 2022, no. 299
The contracts entered into by a co-operative company with its co-operative members are outside the mutualistic social relationship between the company and its members, falling within the scope of the company’s contractual activity, which may be performed both vis-à-vis the members and third parties unrelated to the social relationship. Consequently, the arbitration clause contained in the company’s bylaws does not apply to such contracts.
Court of Milan, 1 March 2022, no. 1826
Where a contract contains an arbitration clause, and a subsequent contract amending the first one provides for the jurisdiction of the state court, it contains a new agreement on jurisdiction that goes beyond the original one.
Court of Modena, 1 March 2022, no. 240
The principle according to which, in the event of the party’s acceptance of the objection of lack of jurisdiction raised by the other party pursuant to article 38 of the code of civil procedure, any power of the court of arbitration is excluded. any power of the court seised to decide on the jurisdiction and to pronounce on the costs of the proceedings before it is excluded, since the court before which the dispute is referred pursuant to article 50 of the code of civil procedure must do so.
Court of Milan, 7 March 2022, no. 1921
The dispute concerning the repayment of a shareholders’ loan is devolved to arbitration if the company’s by-laws contain an arbitration clause.
Court of Florence, 9 March 2022, no. 660
An arbitration clause contained in a company’s by-laws that does not comply with the provisions of Article 34 of Legislative Decree No. 5/2003 and does not provide that the arbitrators must be appointed by a person unrelated to the company is null and void, as it is not possible to accept the double track theory, whereby it would be converted from a clause for endosocietario arbitration into a clause for arbitration under common law, given that Article 34 prescribes nullity in order to guarantee the public policy principle of impartiality of the decision.
Court of Palermo, 4 March 2022, no. 961
The means of challenging the arbitral award must be identified on the basis of the nature of the act concretely performed by the arbitrators and not the arbitration as envisaged by the parties.
Court of La Spezia, 14 March 2022, no. 189
Where an arbitration clause contains a derogation from the arbitral jurisdiction set forth therein, it poses an exception to the rule that cannot be applied by analogy.
Court of Cuneo, 15 March 2022, no. 261
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte and that the objection of compromise cannot be raised ex officio), but requires the latter, in the event of a subsequent objection based on the existence of such a clause, to declare the decree null and void and at the same time to refer the dispute to the arbitrators.
Court of Cuneo, 15 March 2022, no. 262
The existence of an arbitration clause does not exclude the ordinary court’s jurisdiction to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte and that the objection of arbitration cannot be raised ex officio), but requires the ordinary court, in the event of a subsequent objection based on the existence of such a clause, to declare the decree null and void and at the same time to refer the dispute to the arbitrators.
Court of Milan, 15 March 2022, no. 2233
The jurisdiction of the ordinary court to take monitory measures in the presence of a contractual arbitration clause does not imply a regime derogating from the principles affirmed by arts. 91 and 92 of the Code of Civil Procedure, so that recourse to the proceeding for monitoring is made at the risk of the injunction, in the sense that where the defendant lodges an opposition and points out the presence of the arbitration agreement, the revocation of the decree implies the order of the opposing party to pay the costs of the proceedings.
Court of Milan, 17 March 2022, no. 2378
The arbitration clause in the articles of association is not applicable to disputes concerning non-disposable rights, such as the one concerning the application for a declaration of invalidity of the resolution approving the financial statements due to the unlawfulness of the object deriving from the breach in the drafting of the document of the mandatory provisions of the law protecting the general interest not only in the truthfulness of the accounting representation of the company’s financial and economic situation but also in the clarity and accuracy of the information that can be inferred from the data shown, intended for shareholders and third parties that have relations with the company.
Court of Bergamo, 18 March 2022, no. 651
In the presence of a partial novation agreement, concerning only the quantity of the performance and consequently the quantification of the consideration, the arbitration clause contained in the novated agreement remains valid and effective.
Court of Palermo, 22 March 2022, no. 1221
The arbitration clause contained in a company’s bylaws maintains its effectiveness also for proceedings in which the right of the withdrawn shareholder to liquidation of the value of the share is disputed, since these are disposable rights relating to the company’s relationship.
Court of Perugia, 23 March 2022, No. 412
In case of doubt, an interpretation tending to narrow the scope of the clause in favour of the normal and ordinary jurisdiction should always be preferred [per incuriam].
Court of Catania, 25 March 2022, no. 1425
The arbitration clause contained in a company statute unfolds its effects even after the dissolution of the company relationship.
Court of Salerno, 25 March 2022, no. 1014
In the presence of an arbitration clause that excludes from arbitral jurisdiction the injunction proceedings pursuant to Article 633 et seq. of the Code of Civil Procedure and the subsequent possible opposition proceedings, any counterclaim filed in such proceedings must also be deemed to fall within the jurisdiction of the state court.
Court of Catania, 28 March 2022, no. 1430
The provision of an arbitration clause whereby the parties agree to devolve any contractual disputes to an arbitration board does not preclude recourse to the monitoring procedure for obtaining an injunction, since the objection of compromise cannot be raised ex officio, but only upon objection of the party concerned, and in the summary phase of the monitoring procedure there is not yet a dispute characterised by cross-examination between the parties and therefore deferrable to the jurisdiction of the arbitrators. On the other hand, in the subsequent proceedings to oppose an injunction, possibly brought by the ordered debtor, ordinary proceedings of cognition are commenced, which necessarily implies the devolution of the dispute to the cognition of the board of arbitrators, with the consequent declaration of nullity of the injunction decree issued by the ordinary judge lacking jurisdiction.
Court of Rome, 30 March 2022, no. 5005
The presence in a lease agreement of an arbitration clause does not deprive the state judge of the power to issue the immediate measures (release pursuant to art. 665 of the Italian Code of Civil Procedure or validation if the prerequisites are met) but obliges him, in the event of a change in the procedure, once the summary phase is over, to decline his own jurisdiction by judgment, declaring the arbitration one to be subsistent for the merits, it then being up to the parties to take action for the actual conduct of the relative judgement.
Court of Bari, 4 April 2022, no. 1201
Even if the pronouncement of lack of jurisdiction derives from an arbitral award, the reinstatement must be carried out according to the ordinary rules, with notification of the document pursuant to Art. 125 of the Code of Civil Procedure and 170 of the Code of Civil Procedure, whereby the reinstatement must be carried out by means of notification of the document to the party’s attorney already before the court lacking jurisdiction, and not to the party personally, or with notification to the attorney already before the party in the previous proceedings.
Court of Milan, 4 April 2022, no. 2915
The action pursuant to Article 2033 of the Italian Civil Code brought against the director of a company is not subject to the arbitration jurisdiction set forth in the arbitration clause contained in the company’s bylaws.
Court of Teramo, 4 April 2022, no. 345
The formulation of a counterclaim, which is not expressly subordinated to the rejection of the objection of compromise, does not entail a waiver of the latter, but rather the examination of the counterclaim must be considered ontologically conditional on the non-acceptance of the objection of compromise, since the merits of this objection would be incompatible with the submission of another claim.
Court of Palermo, 5 April 2022, no. 1427
The arbitration of the dispute concerning the challenge to the resolution approving the financial statements of a company must be excluded for lack of truthfulness and clarity.
Court of Bari, 6 April 2022, no. 1290
The arbitration clause retains its effectiveness vis-à-vis the bankruptcy trustee who has taken over the contract contemplating it.
Court of Turin, 6 April 2022, no. 1492
The arbitration clause contained in a tender contract does not devolve to the cognisance of the arbitral tribunal disputes relating to so-called extra-contractual works.
Court of Catania, 7 April 2022, no. 1564
Since the referral of a dispute to the arbitrators entails a departure from ordinary jurisdiction, in case of doubt as to the interpretation of the scope of the arbitration clause, a restrictive interpretation of it and affirmative of state jurisdiction must be preferred, recognising that the disputed claim does not fall within the scope of the matter referred to the arbitrators [per incuriam].
Court of Florence, 8 April 2022, no. 1028
In the presence of an arbitration clause in the articles of association, the subject matter of arbitration jurisdiction is only the relationships between the company and the shareholders and between the shareholders themselves for matters relating to the company’s contract, any other claim being excluded, including the obligatory relationships that, although existing between the shareholders themselves, derive from the transfer of shares or other contractual sources.
Court of Latina, 9 April 2022, no. 717
The activity of ritual arbitrators is of a jurisdictional nature and substitutes the function of the ordinary courts, so that the determination of whether a dispute falls within the jurisdiction of the former or the latter is a question of jurisdiction. It follows that the failure to challenge the declining jurisdiction of the ordinary courts and the consequent judgement formed on the jurisdiction of the arbitrators precludes any discussion not only on the act underlying it (the arbitration clause), but also on the arbitral ruling that constitutes its development, if not challenged for reasons other than those concerning jurisdiction.
Court of Trani, 10 April 2022, no. 614
A dispute in which the party sued for the performance of a contract with an arbitration clause disputes that it never concluded the contract and disowns the signature on the contract belongs to the jurisdiction of the state court and not that of the arbitrators, since the devolution of the case to the arbitrators presupposes that the conclusion of the contract and the exact identification of the contracting parties is not in dispute between the parties.
Court of Lamezia Terme, 11 April 2022, no. 238
The arbitration clause is one of those that must be specifically approved in writing pursuant to arts. 1341 and 1342 of the Civil Code only if it establishes arbitration according to ritual, since the stipulation of an informal arbitration does not determine the lack of jurisdiction of the ordinary judge to hear the claim, but only the inadmissibility of the same if the counterparty raises the relative objection in a ritual manner.
Court of Messina, 11 April 2022, no. 638
The non-availability of the right is the limitation of the arbitration clause and should not be confused with the non-derogation of the rules applicable to the legal relationship, which does not prevent arbitration, whereby the violation of mandatory rules may be ascertained, without determining with the award effects prohibited by law. Consequently, disputes relating to the agent’s termination indemnity, which is provided for by a mandatory and inviolable rule, but which does not constitute an inalienable right where the agent is not a natural person, may be referred to arbitration.
Court of Bari, 12 April 2022, no. 1369
Disputes in which the issue of the collectability of off-balance-sheet debts of local public bodies is relevant in light of the public law provisions of Articles 191 and 194 of the Consolidated Law on Finance, the prohibition of the so-called financial rescue under Article 6(19) of Law Decree 78/2010, and the abolition of the Functional Consortia under Article 2(186) of Law 191/2009, are not arbitral.
Court of Genoa, 12 April 2022, no. 927
The conduct of the arbitration is valid ratification of the arbitration clause and the protective nullity under Article 1341 of the Italian Civil Code is not an obstacle to such ratification, especially where the party has availed itself of the technical defence in the arbitration proceedings.
Court of Lucca, 13 April 2022, no. 260
The state court is always competent to issue an injunction notwithstanding the existence of an arbitration clause in the contract from which the creditor relationship at issue originates (and this because the rules of arbitration proceedings do not provide for the pronouncement of measures of a monitoring nature). However, when an objection to an injunction has been filed, normal cognitive proceedings are commenced and, if the debtor objects to the arbitral jurisdiction, the prerequisites set forth in the arbitration agreement are fulfilled and, consequently, the jurisdiction of the ordinary court previously seised is terminated, which must revoke the injunction and refer the parties to the arbitrators.
Court of Palermo, 13 April 2022, no. 1566
The dispute concerning the distribution among the assignees of a building cooperative of certain costs relating to the definition of the construction programme is not endosocietal in nature, and is therefore not attributed to the jurisdiction of the arbitrators provided for by a statutory arbitration clause.
Court of Termini Imerese, 13 April 2022, no. 297
The arbitration clause contained in a company statute is binding towards the heirs of the shareholder.
Court of Vibo Valentia, 13 April 2022, no. 293
On the subject of general terms and conditions of contracts, since the specific written approval of the so-called vexatious clauses (in this case: arbitration clause), pursuant to Article 1341(2) of the Civil Code, is a requirement for the opposability of such clauses to the adhering party, the latter is the only party entitled to rely on any lack thereof, so that the nullity of an onerous clause without the adhering party’s specific written approval cannot be invoked by the predisposing party.
Court of Palermo, 14 April 2022, no. 1584
Disputes concerning the remuneration of company directors may be referred to an arbitration board where such a possibility is provided for by the company’s bylaws.
Court of Palermo, 14 April 2022, no. 1589
Disputes concerning the remuneration of company directors may be referred to an arbitration board where such a possibility is provided for by the company’s bylaws.
Court of Rome, 15 April 2022, no. 5759
The dispute concerning the payments due, and the related accessories, under an ATI regulation is devolved to arbitration where such regulation contains an arbitration clause.
Court of Rome, 15 April 2022, no. 5760
According to the provision set forth in Article 1341(2) of the Civil Code, an arbitration clause or a clause derogating from jurisdiction requires a specific signature as proof of the specific negotiation in this regard.
Court of Florence, 19 April 2022, no. 1126
The arbitration clause for foreign arbitration may also be validly concluded by concluding facts, attributing relevance to the silence of a party in the face of the sending of a document (letter of confirmation or invoice) containing the mention of arbitral competence, in the presence of an established custom, in the sector of international commerce in which the parties operate, that such concluding conduct provides for a suitable method for the formation of the negotiated consent.
Court of Bolzano, 22 April 2022, No. 400
The favour for arbitral competence contained in Article 808-quater of the Italian Code of Civil Procedure refers only to cases in which the doubt of interpretation concerns the quantification of the subject matter entrusted to the arbitrators by the relevant agreement and not to the parties’ choice of arbitration itself.
Court of Trieste, 22 April 2022, no. 197
The arbitration clause contained in a company’s bylaws and binding also against the directors shall also apply to disputes concerning economic claims resulting from the director’s resignation or revocation, since they are caused by the relationship, whether organic or contractual, with the company.
Court of Alessandria, 26 April 2022, no. 363
Arbitration clauses, insofar as they imply a derogation from the (general) jurisdiction of the judicial authority, are of strict interpretation and cannot be extended beyond their meaning, as delineated by the parties [per incuriam with respect to Art. 808-quater of the Code of Civil Procedure].
Court of La Spezia, 20 May 2022, no. 367
With regard to a tender contract, the arbitration clause provided for therein concerns disputes relating to the subject matter of the contract and not those concerning works other than and in addition to those contracted.
Court of Genoa, 4 June 2022, no. 1432
The compromise clause in arbitration does not prevent the issuance of an injunction, because the resulting lack of jurisdiction relates to the cognizance of a dispute (and, therefore, presupposes the cross-examination absent in the monitoring proceedings) and because the exception of compromise is optional and cannot be detected ex officio.
Court of Syracuse, 10 June 2022, no. 1086
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte), but requires the latter, in the event of subsequent opposition based on the existence of said clause, to declare the nullity of the opposed decree and the simultaneous submission of the dispute to the arbitrators.
Court of Catania, 16 June 2022, no. 2758
The production in court by the plaintiff of a contractual document undersigned only by the defendant, in order to invoke its execution, is valid to remedy the lack of the plaintiff’s signature, as it integrates an unequivocal manifestation of willingness to avail oneself of the transaction documented by the incomplete writing, but cannot substitute it, in the case of a contract by adhesion, the lack of the requirement of specific approval in writing, which is necessary for the effectiveness of vexatious or onerous clauses and, therefore, cannot allow the defendant to base a plea of lack of jurisdiction, for arbitration in arbitration, on the arbitration clause contained in the document itself, but not specifically signed.
Court of Bolzano, 20 June 2022, no. 598
On the subject of arbitration jurisdiction, the presence of an arbitration clause does not prevent the plaintiff from requesting and obtaining an injunction from the ordinary courts for the claim arising from the contract, without prejudice to the plaintiff’s right to object to the arbitration jurisdiction in the opposition, with the consequent need for the latter judge to revoke the injunction and send the parties to the sole arbitrator or to the arbitration board.
Court of Genoa, 21 June 2022, no. 1585
In matters of free arbitration, the principle according to which the cessation of the operativeness and effectiveness of the compromise gives rise to the parties’ power to exercise the actions deriving from the contract and to ask the judge for the decision formerly referred to the appreciation of the arbitrators finds its justification in objective events that affect the validity and effectiveness of the compromise or arbitration clause, or that entail the impossibility of the arbitral response or its annulment, or that in any event affect a phase subsequent to the conclusion of the compromise or arbitration clause. Outside these hypotheses, the unsuccessful commencement of the limitation period set forth to refer the case to the free arbitrators determines the definitive waiver of the jurisdictional protection of the rights relating to the disputed relationship and the inadmissibility of the legal action.
Court of Milan, 23 June 2022, no. 5606
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte), but requires the latter, in the event of a subsequent objection based on the existence of said clause, to declare the decree opposed null and void and at the same time to refer the dispute to the arbitrators.
The injunction party’s choice to resort to the enforcement procedure despite the presence of the arbitration clause is subject to the risk that such clause may be legitimately invoked by the defendant in the opposition phase, so that in such a hypothesis there are no grounds for offsetting the costs of the proceedings.
Court of Rome, 23 June 2022, no. 10146
The contractual clause establishing the exclusive jurisdiction of a given court for disputes relating to the contract in the event that the contractual arbitration clause is declared invalid or ineffective does not exclude arbitral jurisdiction, where such clause is not invalid or ineffective.
Court of Palermo, 24 June 2022, no. 2809
In arbitration proceedings, the only preliminary issues removed from the jurisdiction of the arbitrators are those referred to in Article 806 of the Italian Code of Civil Procedure (providing for non-transferable matters or other matters fixed by law), so that in the hypothesis of simultaneous pendency of the same case before the judicial authority and an arbitration board, the lis pendens does not apply, nor can the necessary suspension referred to in Article 295 of the Code of Civil Procedure be invoked. cod. proc. civ., since the jurisdiction of one of the courts, excluding that of the other and having exclusive and mandatory character, must be resolved by affirming or denying the jurisdiction of the court seised, in relation to the existence, content and limits of validity of the arbitration agreement or clause.
Court of Milan, 27 June 2022, no. 5654
In the presence of linked contracts, one containing an arbitration clause and the other an exclusive jurisdiction clause, the disputes relating to the second are not subject to arbitration.
Court of Ravenna, 27 June 2022, no. 370
In informal arbitration, an award may be challenged for essential error only when the formation of the arbitrators’ will has been deviated by an altered perception or a false representation of the reality and factual elements submitted to their examination (so-called error of fact), and not also when the deviation relates to the assessment of a reality whose elements have been exactly perceived (so-called As a result, the arbitral award cannot be challenged on the ground of errores in iudicando, not even when they consist in an erroneous interpretation of the same contract entered into by the parties, which gave rise to the mandate to the arbitrators; nor, more generally, is the arbitral award voidable on the ground of erroneous application of the rules of contractual hermeneutics or, a fortiori, on the ground of an appreciation of the contractual results different from that considered by the arbitrators and not in accordance with the expectations of the challenging party.
Court of Vicenza, 27 June 2022, no. 1101
The objection of lack of jurisdiction formulated by the opposing plaintiff in opposition to an injunction order must be rejected where the notice of opposition does not contain any dispute concerning the merits of the claim asserted by way of enforcement, such as to entail the existence of a dispute. This is because, in such a context, a formal pronouncement declining jurisdiction and/or the admissibility of the claim for payment would be unreasonably detrimental to the party in the right, exposing it to specious and merely dilatory objections.
Court of Lecce, 28 June 2022, no. 1978
The arbitral award may be challenged for nullity if the arbitration agreement is invalid (art. 829, para. 1, no. 1, code of civil procedure), but the challenge must be made within one year from the date of the last signature (art. 828, para. 2, code of civil procedure). If the constitution of the board is vitiated, it is the party that must assert the defect by contesting and challenging the award. Failing this, the award becomes final and the judgement cannot be reopened even if with a subsequent ruling, which is also final, the state court has ruled that the arbitration agreement is invalid.
Court of Bari, 30 June 2022, no. 2627
The dispute concerning the annulment of a corporate resolution for violation of the rules on conflict of interest and abuse of majority is, in the presence of a statutory arbitration clause, within the jurisdiction of arbitration courts.
Court of Rome, 30 June 2022, no. 10003
The eviction procedure is a special procedure of cognition and therefore, where the dispute relating to the termination or termination of the contract for expiry of the term or for default has been the subject of an arbitration clause or compromise, this entails a waiver of the landlord’s right to use the validation procedure – unless expressly waived by the parties – with the consequence that the dispute must be referred to arbitrators.
Court of Sciacca, 30 June 2022, no. 312
When the existence of an arbitration clause is established in the opposition proceedings, the injunction must be revoked.
Court of Prato, 4 July 2022, no. 400
When an arbitration proceeding is pending at the date of the declaration of bankruptcy, such proceeding (except for the cases in which the claim against the bankrupt must be asserted in the bankruptcy proceedings) cannot be continued only if the dissolution of the contract is referable to the cases provided for by articles 72 et seq. of the bankruptcy law, not in the other cases.
Court of Milan, 5 July 2022, no. 5887
The arbitration clause contained in a master agreement shall apply to disputes concerning the executive negotiations of such master agreement, even after the expiry of its term of effect, where it may be inferred from the conduct of the parties that they have continued to regard it as the source of the regulation of their relationship.
Court of Ragusa, 5 July 2022, No. 960
Although the existence of an arbitration clause does not exclude the jurisdiction of the state court to issue an injunction, in the event of an objection based on the lack of jurisdiction of the judge, by virtue of an arbitration clause, the objection must therefore be upheld, with the consequent revocation of the impugned enforcement order.
Court of Udine, 5 July 2022, no. 654
The arbitration clause contained in the bylaws of a partnership, which provides for the appointment of a sole arbitrator by the partners and, in the event of disagreement, by another third party, is affected by supervening nullity detectable ex officio, does not produce effects and the dispute may only be brought before the ordinary courts.
Court of Rome, 7 July 2022, no. 10887
The presence of an arbitration clause does not prevent an ordinary court from requesting and obtaining an injunction decree, but requires the latter, in the event of subsequent opposition based on the existence of said clause, to revoke the injunction decree and send the parties before the arbitrators.
Court of Santa Maria Capua Vetere, 7 July 2022, no. 2728
The arbitration clause, contained in a company’s bylaws, which provides for the devolution to arbitrators of disputes relating to the company contract, must be deemed to extend, inter alia, to the dispute concerning the shareholder’s withdrawal from the company.
Court of Milan, 12 July 2022, no. 6095
Article 2378, para. 5, of the Italian Civil Code represents a special rule in relation to Article 819-ter, para. 1, of the Italian Code of Civil Procedure and therefore, in the event of a combined application for annulment and for a declaration of nullity of a shareholders’ meeting resolution, it also attracts the former to the jurisdiction of the state court [per incuriam].
Court of Florence, 13 July 2022, no. 2164
The dispute concerning the invalidity of the shareholders’ meeting resolution for failure to convene the shareholder or for a procedural defect relating to the failure to file the financial statements during the 15 days prior to approval, being subject to the system of amnesty provided for by Article 2379-bis of the Italian Civil Code, can be referred to arbitrators.
Court of Patti, 15 July 2022, no. 555
The referral of a dispute to arbitrators entails a derogation from ordinary jurisdiction; therefore, in case of doubt as to the interpretation of the scope of the arbitration clause, a restrictive interpretation of it and affirmative of state jurisdiction must be preferred [per incuriam].
Court of Palermo, 18 July 2022, no. 3188
The bringing of a liability action by the bankruptcy trustee, who jointly represents the interests of the company and the company’s creditors, entails the rejection of the plea of lack of jurisdiction in favour of the arbitrators raised on the basis of the statutory arbitration clause, which is clearly not enforceable against third-party creditors.
Court of Milan, 19 July 2022, no. 6378
The non-payment of rents constitutes a circumstance pertaining to the performance of the lease agreement and therefore, in the presence of an arbitration clause, the relevant dispute must be referred to the Arbitration Board. Nevertheless, the presence of an arbitration clause does not deprive the Judge of the power to issue immediate measures during the summary phase, such as a provisional release order pursuant to Article 665 of the Code of Civil Procedure.
Court of Milan, 19 July 2022, no. 6380
The non-payment of rent constitutes a circumstance pertaining to the performance of the lease agreement and therefore, in the presence of an arbitration clause, the relevant dispute must be referred to the Arbitration Board. Nevertheless, the presence of an arbitration clause does not deprive the Judge of the power to issue immediate measures during the summary phase, such as a provisional release order pursuant to Article 665 of the Code of Civil Procedure.
Court of L’Aquila, 20 July 2022, no. 486
Adherence to the plea of lack of jurisdiction put forward by the party, on the ground that the arbitrators are competent, entails, pursuant to article 38 of the code of civil procedure, the exclusion of any power of the court seized to decide on the jurisdiction and consequently to rule on the court costs relating to the phase held before it, since the court to which the case is referred must do so.
Court of Catanzaro, 21 July 2022, no. 1109
The dispute challenging the resolution approving the financial statements of a company for lack of the requirements of truth, clarity and precision cannot be submitted to arbitration. Indeed, notwithstanding the provision of time limits for contestation, with the consequent sanctioning of nullity, the rules aimed at guaranteeing such principles are not only mandatory, but, being dictated not only to protect each shareholder’s interest in being informed of the company’s management performance at the end of each financial year, but also the confidence of all the subjects that enter into a relationship with the company, who have the right to know the company’s financial and asset situation, they transcend the interest of the individual and therefore belong to non-transferable rights.
Court of Pisa, 21 July 2022, no. 994
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte), but requires the latter, in the event of subsequent opposition based on the existence of said clause, to declare the nullity of the opposed decree and at the same time to refer the dispute to the arbitrators.
Court of Rome, 22 July 2022, no. 11730
The objection of compromise is of a procedural nature, as it relates to a matter of jurisdiction, which cannot be raised ex officio as it is of a non-functional nature, at least in cases where it does not relate to non-transferable rights, and must be raised in the response and within the time limit set pursuant to article 166 of the Italian Code of Civil Procedure, under penalty of forfeiture and consequent establishment of the power to decide the proposed claim at the court hearing the case.
Court of Catanzaro, ord. 24 July 2022
Pursuant to Article 669-quinquies of the Italian Code of Civil Procedure, if the dispute is the subject of an arbitration clause or is settled by arbitrators, including non-ritual arbitrators, or if arbitration proceedings are pending, the precautionary application is submitted to the court that would have been competent to hear the case on the merits. The principle established by Article 818 of the Italian Code of Civil Procedure, according to which arbitrators, unless otherwise provided by law, are precluded from granting seizures and other precautionary measures, also applies to company law, since arbitrators are deprived of coercive powers that the law reserves only to ordinary judicial authorities.
Court of Udine, ord. 25 July 2022
Even in the presence of an arbitration arbitration clause ICC, the competition between the interim remedies offered by the state courts and the arbitral courts is the ordinary situation and the parties’ recourse to the interim power of the state courts is not considered a breach of or waiver of arbitration if it is implemented (after the private court has been constituted) in appropriate circumstances.
Court of Rome, 26 July 2022, no. 12005
The nullity of the substantive agreement does not affect the arbitration clause contained therein, which is left to the arbitrators to ascertain the alleged invalidity. A fortiori in the hypothesis of termination of the contract, the arbitration clause retains its effectiveness for the purpose of settling disputes arising between the parties, including those relating to the termination itself.
The arbitration clause contained in a contract concluded by a company is not enforceable against its administrator.
Court of Milan, 27 July 2022, no. 6620
The dispute relating to a share transfer contract is not devolved to arbitration jurisdiction pursuant to the arbitration clause contained in the company’s bylaws.
Court of Perugia, ord. 29 July 2022
A precautionary petition for the suspension of corporate resolutions may be filed before the ordinary court, which otherwise has jurisdiction on the merits, at the same time as the arbitration petition – but not beforehand. The room for intervention of the ordinary court concerns the hypothesis that the arbitration board, despite the fact that the application for arbitration has been filed, is not yet constituted. This is so that the devolution to the ordinary judge (with a vicarious and supplementary role) of the power to decide on the suspension of the contested resolution ensures, even in arbitration, that the petition for suspension is promoted at the same time (and in any case not prior) to the commencement of the action on the merits, in accordance with the provision of Article 2378 of the Italian Civil Code, which constitutes a special precautionary remedy for the suspension of the corporate resolution.
Court of Milan, 2 August 2022, no. 6746
In the event of a contract drafted by one of the parties, which provides for both an arbitration clause and an exclusive forum, where only the first provision is specifically approved in writing pursuant to Article 1341 of the Italian Civil Code, the parties’ intention, contractually binding, to devolve to the arbitration board the judgement of disputes arising under the contract must be deemed proven.
Court of Santa Maria Capua Vetere, 3 August 2022, no. 3064
The principle according to which the question of the inadmissibility of the claim resulting from the provision of an arbitration arbitration clause is to be considered ius recpetum, is to be raised on the party’s objection and cannot be raised ex officio.
Court of Milan, 4 August 2022, no. 6793
The deletion of an arbitration clause from the text of a company’s by-laws cannot be enforced against directors who, having left office at an earlier time, no longer had any relationship with the company at the time the by-laws were amended, so that they may be deemed to be still bound by the provisions of the by-laws at the time they took office and throughout their entire term of office.
The foreseeable expenses referred to in Article 816-septies of the Code of Civil Procedure are not exclusively those for the operation of the arbitration, thus excluding the arbitrators’ fees, since such a distinction has no basis in the letter of the law.
Court of Naples, 4 August 2022, no. 7651
Excluded from the list of arbitrable corporate disputes are those that have as their object non-disposable assets, such as those concerning the challenge of shareholders’ meeting resolutions having an unlawful or impossible object, which give rise to nullity that can also be detected ex officio, as well as in the absolute absence of information.
Court of Siena, 4 August 2022, no. 702
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary judge to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte), but requires the latter, in the event of subsequent opposition based on the existence of said clause, to declare the nullity of the opposed decree and the simultaneous submission of the dispute to the arbitrators.
Court of Novara, 9 August 2022, No. 464
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte), but requires the ordinary court, in the event of a subsequent objection based on the existence of such a clause, to declare the opposed decree null and void and at the same time to refer the dispute to the arbitrators.
Court of Sassari, 12 August 2022, no. 858
In the matter of corporate arbitration, the shareholder’s withdrawal from the company does not preclude recourse to informal arbitration to settle the relationship with the company, since the contractual obligation attributable to the arbitration clause is not conditional upon the permanence of the company’s contractual obligation.
Court of Bari, 2 September 2022, no. 3199
The literal reference, contained in the arbitration clause, to “any dispute” “devolved” leads to the conclusion of the ritual nature of the arbitration, deponing in the sense of the jurisdictionality of the activity entrusted to the arbitrator.
Court of Bari, 2 September 2022, no. 3199
The literal reference, contained in the arbitration clause, to “any dispute” that is “devolved” leads to the conclusion that the arbitration is ritual in nature, suggesting that the activity entrusted to the arbitrator is jurisdictional.
Court of Bologna, 2 September 2022, no. 2207
The claims brought by the bankruptcy of a company against the former corporate bodies in order to exercise both the action for damages accruing to the company and the action for damages accruing to the company’s creditors as a result of the determined insufficiency of the company’s assets must be heard by the court, since the clause contained in the company’s bylaws that assigns to arbitrators the jurisdiction over disputes between the company and its directors does not operate.
Court of Florence, 6 September 2019, No. 2427
The dissolution of the arbitration clause pursuant to Article 816-septies of the Italian Code of Civil Procedure also applies in the event that the arbitration jurisdiction has been established by a final judgment prior to such dissolution.
Court of Pisa, 12 September 2022, no. 1099
Adherence to the plea of lack of jurisdiction determines the exclusion of any power of the court seized, with the consequent impossibility of ruling on legal costs. On this point, in fact, the judge – i.e. the arbitral tribunal – competent to decide the case on the merits must decide.
Court of Reggio Calabria, 12 September 2022, no. 1023
Apart from the special procedure provided for in Article 814 of the Code of Civil Procedure, each arbitrator may act, according to the general rule, in the ordinary proceedings of cognition, for the ascertainment of the subjective right to compensation.
Court of Naples, 14 September 2022, no. 8054
Only disputes relating to the challenge of shareholders’ meeting resolutions of companies having an unlawful or impossible object, which give rise to nullity that can also be raised ex officio by the judge, to which are equated, pursuant to Article 2479-ter of the Italian Civil Code, those taken in the absolute absence of information, in the absence of the right to be heard by the arbitrators, those taken in the absolute absence of information, so that the dispute concerning the invalidity of the shareholders’ meeting resolution for failure to convene the shareholder, being subject to the system of amnesty provided by Article 2379-bis of the Italian Civil Code, may be referred to arbitrators.
The dispute concerning the alleged annulment of a shareholders’ meeting resolution may be referred to arbitrators on an informal basis.
Court of Florence, 15 September 2022, no. 2525
The activity of the ritual arbitrators is of a jurisdictional nature and substitutes the function of the ordinary judge, so that determining whether a dispute falls within the jurisdiction of the former or the latter is a question of competence.
Court of Benevento, 16 September 2022, no. 2048
In the event that doubts remain as to the actual will of the contracting parties contained in the arbitration agreement, one must opt for the ritual nature of arbitration, taking into account that the exception to the rule whereby the award has the effectiveness of a court judgment is exceptional in nature.
Court of Larino, 22 September 2022, no. 459
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not contemplate the issuance of orders inaudita altera parte), but requires the latter, in the event of subsequent opposition based on the existence of said clause, to declare the nullity of the opposed decree and the simultaneous submission of the dispute to the arbitrators.
Court of Pisa, 23 September 2022, no. 1141
In case of adhesion to the plea of lack of jurisdiction under an arbitration clause, the conditions exist for ordering the set-off of litigation costs.
Court of L’Aquila, ord. 27 September 2022
When the interlocutory injunction is requested from a judge other than the judge having jurisdiction on the merits, the decision on the costs of the interlocutory proceedings is always devolved to the interlocutory judge; on the one hand, in fact, it would not be possible to invest the arbitrators with a decision on the costs of a case in any case outside their cognisance and, on the other hand, it would not be justifiable to sacrifice the party that is victorious in the interlocutory proceedings.
Court of Ancona, 27 September 2022, no. 1072
In the event of a company’s bankruptcy, the arbitration clause contained in its bylaws is not applicable to the liability action brought by the receiver against the directors pursuant to Article 146 of the bankruptcy law.
Court of Ancona, 27 September 2022, no. 1075
The arbitration clause in the articles of association that differs from the model set forth in Article 34 of Legislative Decree No. 5 of 17 January 2003 is affected by supervening nullity that can be recognised ex officio with the consequence that the clause has no effect and the dispute can only be brought before the ordinary courts, as it cannot be converted into a common law arbitration clause, since it is null and void in order to guarantee the public policy principle of impartiality of the decision.
Court of Belluno, 27 September 2022, no. 359
The objection of compromise relating to an informal arbitration does not give rise to a question of jurisdiction, but rather of the admissibility of the claim, and therefore constitutes a substantive objection pertaining to the merits.
Court of Brescia, 28 September 2022, no. 2331
Disputes that cannot be referred to arbitrators therefore include all those for which the ordinary judge has functional and mandatory jurisdiction, such as the special validation proceedings pursuant to articles 657 and 658 of the Italian Code of Civil Procedure; limited, however, to the first phase of summary cognition, since there is no preclusion of the subsequent phase of full cognition for the case to be decided on the merits by arbitrators.
Court of Ancona, 3 October 2022, no. 1116
The dispute challenging the resolution approving the financial statements of a company for lack of the requirements of truth, clarity and precision cannot be settled by arbitration. Indeed, notwithstanding the provision of time limits for filing an appeal, with the consequent sanctioning of nullity, the rules intended to guarantee such principles are not only mandatory, but, being dictated not only to protect the interest of each shareholder in being informed of the company’s management performance at the end of each financial year, but also the confidence of all persons who enter into a relationship with the company, who are entitled to know the company’s financial and asset situation, they transcend the interest of the individual and therefore relate to non-transferable rights.
Article 2378(5) of the Italian Civil Code, pursuant to which all appeals relating to the same resolution must be heard and decided in a single ruling, is an exception to the provisions of Article 819-ter of the Italian Civil Procedure Code.
Court of Naples, 3 October 2022, no. 8624
The dispute concerning both possible formal defects concerning the procedure for the formation of the will of the shareholders’ meeting and substantial defects of clarity and truthfulness of the financial statements is attributed to the jurisdiction of the state court.
Court of Vallo della Lucania, 4 October 2022, no. 698
Article 1341(2) of the Italian Civil Code, which requires the specific approval in writing of, inter alia, the arbitration clause, also applies to contracts concluded by the public administration, and in particular to those concluded by means of specifications, which have the characteristics of a standardised contract.
Court of Fermo, 5 October 2022, no. 527
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules governing arbitration proceedings do not contemplate the issuance of orders inaudita altera parte), but does require the latter, in the event of a subsequent objection based on the existence of said clause, to declare the nullity of the opposed decree and the simultaneous submission of the dispute to the arbitrators.
Court of Bologna, 7 October 2022, no. 2494
The arbitration clause in the articles of association referring only disputes arising between the shareholders or between the shareholders and the company to arbitrators does not establish arbitration jurisdiction over disputes concerning the directors’ liability.
Court of Naples, 10 October 2022, no. 8876
In consideration of the jurisdictional nature of arbitration and its function as a substitute for ordinary jurisdiction, the objection of compromise has a procedural character and integrates a question of competence, with the consequent rooting at the court seized of the power to decide on the proposed claim, where it is not formulated in the statement of defence and within the time limit set forth in Article 166 of the Code of Civil Procedure.
Court of Florence, 12 October 2022, no. 2843
The causes of appeal against resolutions approving a balance sheet, denounced as null and void, pertain to interests also external to the company, as such unavailable and not compromisable.
Court of Teramo, 12 October 2022, no. 1003
The existence of an arbitration clause for ritual or irritual arbitration does not exclude the jurisdiction of the ordinary judge to issue an injunction decree, but requires the latter, in the event of subsequent opposition based on the existence of such clause, to declare the nullity of the opposed decree.
Court of Bologna, 13 October 2022, no. 2551
The dispute concerning the challenge of a corporate resolution for alleged violation of the shareholders’ right to information concerns an unavailable right and, as such, cannot be referred to arbitrators.
Court of Sassari, 14 October 2022, no. 1027
The irritual arbitral award is appealable and may be annulled according to the rules common to flaws in the formation of the contractual will, such as for decisive error where the arbitrators have decided on the basis of an erroneous perception or representation of the factual elements in dispute. Such an error occurs, according to a broader interpretation, which is to be preferred, also when the arbitrators not only failed to examine, but also examined in a manifestly altered or incomplete manner the factual elements submitted to their investigation, according to a mechanism similar to that provided for the revocation of the judgment pursuant to Article 395(4) of the Code of Civil Procedure.
Court of Ancona, 18 October 2022, no. 1168
Pursuant to Article 34(4) of Legislative Decree No. 5/2003, the extension of the effectiveness of the statutory arbitration clause to the directors, liquidators and statutory auditors (persons unrelated to the company contract) must be express and specific.
Court of Bologna, 20 October 2022, no. 2583
The arbitration clause in the articles of association that provides that disputes between shareholders or between shareholders and the company may be referred to an arbitral tribunal must be interpreted in the sense that it does not impose any obligation to refer to arbitrators, but simply leaves the parties the option to do so, with the jurisdiction of the ordinary courts remaining (also) unchanged.
Court of Bologna, 21 October 2022, no. 2602
Claims for ascertainment of liability pursuant to Article 2476 of the Italian Civil Code, an injunction against the performance of activities detrimental to the company, ascertainment of the breach of the duty of good faith and a claim for damages fall within the scope of the statutory arbitration clause.
Court of Milan, 25 October 2022, No. 8374
The arbitration agreement by which the parties, in relation to certain disputes, grant the arbitrators a mandate to express a negotiating will binding on them does not imply a derogation from the jurisdiction of the judicial authority, but entails a situation of inadmissibility of the action.
Court of Naples, 25 October 2022, no. 9463
Irregular arbitration awards may not be challenged on the ground of errores in iudicando, as allowed by article 829 of the Code of Civil Procedure for regular arbitration, not even if they consist in an erroneous interpretation of the same contract entered into by the parties that gave rise to their mandate; and they may no longer be annulled for erroneous application of the rules of contractual hermeneutics, nor a fortiori for an appreciation of the results of the negotiations that differs from that considered by the arbitrators and in any case does not conform to the expectations of the challenging party.
Court of Milan, 26 October 2022, no. 8411
The arbitration clause in the articles of association binds the disputants also in the hypothesis that it is precisely the status of shareholder that is in dispute, pursuant to the express provision of Article 34(3) of Legislative Decree No. 5/2003.
Court of Milan, 28 October 2022, no. 8496
In the presence of an arbitration clause in the articles of association, the claim for damages based on the adoption of an unlawful company resolution is devolved to arbitration.
Court of Bergamo, 31 October 2022, no. 2369
The presence of an arbitration clause does not prevent the plaintiff from requesting and obtaining from the ordinary court an injunction for the claim arising out of the contract, without prejudice to the plaintiff’s right to object to the arbitral jurisdiction in the opposition proceedings, with the consequent need for the latter court to revoke the injunction and send the parties to the sole arbitrator or to the arbitration board.
Court of Vicenza, 3 November 2022, no. 1845
Art. 819-ter, para. 2 of the Code of Civil Procedure expressly excludes the application of Art. 295 of the Code of Civil Procedure in relations between arbitration and trial.
Court of Cosenza, 5 November 2022, no. 1899
The arbitration clause, contained in the bylaws, which provides for the devolution of contractual disputes to arbitrators, also applies to the claims brought by the defendant with regard to the relationship with the collective entity, even though the defendant is no longer a member of the association, since such claims continue to be brought within the association, despite the fact that the dissolution of the association is limited to the individual relationship.
Court of Catania, 7 November 2022, no. 4537
The arbitration clause devolving the hearing of disputes relating to the interpretation and application of the contract is to be understood in a broad sense, since it includes all those disputes whose claims have their causa petendi in the contract or which in any case concern the enforcement aspect of the contract itself.
Court of Naples, 7 November 2022, no. 9840
The objection of compromise referring to a ritual arbitration clause relates to jurisdiction, since the activity of ritual arbitrators must be recognised as jurisdictional in nature and substitutive of the ordinary courts. On the contrary, the objection referred to an informal arbitration clause relates to the merits, as the arbitration ruling is of a negotiated nature and the agreement is configured as a waiver agreement to waive legal action and state jurisdiction with the consequent inapplicability of the rules dictated for ritual arbitration, including article 819-ter of the code of civil procedure.
Court of Lodi, 8 November 2022, no. 763
The plea alleging the existence (or disputing the scope) of an arbitration clause for informal arbitration does not raise a question of the jurisdiction of the courts (as in the different case of an arbitration clause for customary arbitration), but challenges the admissibility of the claim on the ground that the parties have chosen to settle the dispute by negotiation, waiving the right to judicial protection.
Court of Florence, 9 November 2022, no. 3125
The interest in having a resolution that approved a false balance sheet declared null and void, or one that decided on an unlawful or impossible object, must be considered non-transferable; on the contrary, that relating to a resolution adopted without informing the shareholder, although equal to the others by reason of its nullity, is not, because in such a case it is only the interest of the shareholder himself that could be affected, and he could well renounce asserting the defect. The request for the annulment of such a resolution can therefore be heard by the arbitrators.
Court of Patti, 10 November 2022, No. 788
While it is true that the ordinary court always has jurisdiction to issue an injunction notwithstanding the existence of an arbitration clause provided for in the contract from which the creditor relationship asserted in the action originates, however, when an opposition to the injunction decree is filed, the normal proceedings of cognition are instituted and if the debtor objects to the arbitral jurisdiction, the prerequisites set forth in the agreement are fulfilled and, consequently, the jurisdiction of the court previously seised ceases, which must revoke the injunction and refer the parties to the arbitration board or to the sole arbitrator, as the case may be.
Court of Brescia, 11 November 2022, no. 2739
The arbitration clause contained in a preliminary contract of sale survives its failure to be reproduced in the final contract, as it is an autonomous transaction with procedural effects, having a distinct function from the preliminary contract to which it accedes; it follows that the parties may nullify it only by a manifestation of will specifically directed to such effect.
Court of Brescia, 11 November 2022, no. 2740
Each party that has signed an arbitration clause has the right to sue and be sued before the arbitrator in the manner and under the terms agreed therein. In the case of a necessary joinder of parties, the summons to appear before the ordinary courts and the failure of a respondent joinder party to acknowledge the existence of the clause constitute, in substance, dispositive acts that, although legitimate, cannot be effective against the other joinder parties who, by requesting that the dispute be decided by the arbitrators as agreed in the agreement, do not intend to derogate from it.
It follows that an objection to arbitration raised by even only one of the joinder parties is capable of establishing jurisdiction before the arbitrator.
Court of Sulmona, 11 November 2022, no. 244
The existence of an arbitration clause does not preclude the pronouncement of the injunction decree, since the parties’ waiver of judicial protection cannot be detected ex officio by the judge hearing the injunction proceedings, but it does require the opposing judge, in the event of opposition based on the allegation of the existence of such a clause, to declare the nullity of the opposing injunction decree.
Court of Florence, 14 November 2022, No. 3184
The right of pre-emption in corporate matters is of a disposable nature, being susceptible of waiver by its holder, and therefore disputes relating to its exercise may be referred to arbitration.
Court of Palermo, 14 November 2022, no. 4632
In the case of revocation of an injunction, due to the fact that an objection of compromise has been raised in the opposition proceedings, the procedural conduct of the opposing defendant, who has acceded to the objection of lack of jurisdiction, cannot be considered relevant for the purpose of ruling on the costs of the proceedings. Such conduct cannot, in fact, lead to a mutual loss of jurisdiction or identify one of the hypotheses provided for in Article 92 of the Code of Civil Procedure in the presence of which the judge may set off costs between the parties, in part or in full.
Court of Trento, 14 November 2022, no. 657
The relationship that binds the director to the company is one of organic immedesimation, not referable to the subordinate employment relationship, nor to that of coordinated and continuous collaboration, having to be, rather, ascribed to the area of autonomous professional work or qualified as a company relationship tout court, Therefore, disputes between directors and the company, even if specifically pertaining to the ‘internal’ profile of the management activity and the rights deriving therefrom for the directors (such as, in the present case, that of remuneration), may be settled by arbitration, where such a possibility is provided for by the company’s bylaws.
Court of Potenza, 15 November 2022, no. 1228
The existence of an arbitration clause does not preclude the pronouncement of the injunction decree, since the waiver of judicial protection by the parties cannot be detected ex officio by the judge hearing the injunction proceedings, but it does require the opposing judge, in the event of opposition based on the allegation of the existence of such a clause, to declare the nullity of the opposing injunction decree.
Court of Torre Annunziata, 21 November 2022, no. 2591
The determination of one’s fee directly by the arbitration board is a source of obligation under Article 814(2) of the Code of Civil Procedure, only as a result of the acceptance of all the parties to the arbitration proceedings (failing which it is necessary to follow the procedure envisaged for judicial liquidation), so that the acceptance manifested by only one of the parties cannot be considered to be instrumental in triggering the obligation to pay the fees, nor does it entitle that party, in the event of payment of the sum claimed, to actions of recourse against the other. The determination of fees pursuant to Article 814(2) of the Code of Civil Procedure, The determination of the fees pursuant to Article 814.2 of the Italian Code of Civil Procedure, in fact, takes place as a result of a specific negotiated agreement (which, intervening between the arbitrators and the compromising parties, is radically different from the contract between the same parties concerning the appointment of the arbitrator), the formative process of which, initially fixed by the arbitrators’ self-liquidating measure (which merely acts as a contractual proposal) can legitimately be deemed completed only as a result of the acceptance of all the disputants.
Court of Castrovillari, 23 November 2022, no. 299
In the event that the parties have not specified in the arbitration clause whether the arbitration is ritual or irritual arbitration, it is necessary to interpret the arbitration clause in accordance with the principles set forth in Art. 1362 et seq. of the Civil Code, trying to concretely reconstruct the bargaining will of the contracting parties, on the basis of the literal elements and evaluating their overall conduct, also subsequent to the conclusion of the contract, as well as taking into account that ambiguous expressions must be interpreted, in case of doubt, in the sense most appropriate to the nature and object of the contract (Art. 1369 of the Italian Civil Code).
Court of Rome, 24 November 2022, no. 17460
The dispute over the nullity of a limited liability company’s shareholders’ meeting resolution, in relation to the shareholder’s failure to convene the meeting, as subject to the amnesty period provided for by Article 2379-bis of the Italian Civil Code, is arbitrable, given that the area of non-compromisability is restricted to the absolute non-assignability of rights and, therefore, only to irremediable nullities.
Court of Novara, 28 November 2022, no. 683
The arbitration clause applies only to claims that find their basis in the contract to which the clause refers and not also to those of which the contract is merely a historical premise.
Court of Florence, 30 November 2022, no. 3364
Ritual arbitration is however to be preferred, in any case of doubt, since the will to refer the dispute to arbitrators, in the absence of an express declaration to the contrary, must be considered an expression of a choice in favour of the typical institution regulated by the code of procedure.
Court of Venice, 30 November 2022, no. 1963
Disputes concerning the contestation of the resolution approving the financial statements for violation of mandatory rules, such as those relating to the formation of the content of the accounting document, allegedly drafted in breach of the regulatory principles of clarity and truth, are not arbitrable and must therefore be decided by the state court. If, however, the plaintiff challenges both the content of the accounting document and the shareholders’ meeting proceedings that led to its approval, the state court has jurisdiction only with reference to the former, while the latter must be referred to arbitration.
Court of Bari, 2 December 2022, no. 4493
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction, but requires the latter, in the event of a subsequent opposition based on the existence of said clause, to declare the nullity of the opposed decree and at the same time to refer the dispute to the arbitrators.
Court of Pisa, 5 December 2022, no. 1514
The ordinary judge is always competent to issue an injunction notwithstanding the existence of an arbitration clause provided for in the contract from which the creditor relationship deduced in the action originates, however, when an opposition to the injunction decree has been filed, the normal proceedings of cognition are instituted and if the debtor objects to the arbitral jurisdiction, the prerequisites set forth in the agreement are fulfilled and, consequently, the jurisdiction of the court previously seised ceases, which must revoke the injunction and refer the parties to the arbitration panel or to the sole arbitrator, as the case may be.
Court of Foggia, 5 December 2022, No. 2989
The principle according to which the existence of an arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction (given that the rules of arbitration proceedings do not provide for the issuance of orders inaudita altera parte) also applies to the case of an injunction pursuant to Article 150 of the Bankruptcy Law, but requires the ordinary court, in the event of a subsequent objection based on the existence of the clause, to declare the nullity of the opposed decree and at the same time to order the submission of the dispute to the arbitrators.
Court of Rome, 6 December 2022, no. 17977
The ordinary judge always has jurisdiction to issue an injunction notwithstanding the existence of an arbitration clause provided for in the contract from which the creditor relationship asserted in the action originates, however, when an opposition to the injunction decree has been filed, the normal proceedings of cognition are instituted and if the debtor objects to the arbitral jurisdiction, the prerequisites set forth in the agreement are fulfilled and, consequently, the jurisdiction of the court previously seised ceases, which must revoke the injunction and refer the parties to the arbitration board or to the sole arbitrator, as the case may be.
Court of Catanzaro, 9 December 2022, No. 1774
The arbitration clause contained in a framework agreement does not remove from the jurisdiction of state courts disputes relating to contractual relations arising therefrom.
Court of Palermo, 9 December 2022, no. 5137
The defendant, who, after having filed an objection of arbitration, does not limit himself to formulating simple defences and raising exceptions in the proper sense, but proposes a counterclaim, engages in a procedural conduct that, by resolving itself into a request to the ordinary judge to issue a ruling relating to the procedural relationship deduced in the suit, denotes his willingness to waive the objection of compromise [arguing on the basis of Cass, II Civil Division, 30 May 2007, no. 12736; but see to the contrary Supreme Court, I Civil Division, 30 May 2007, no. 12684].
Court of Bari, 20 December 2022, no. 4706
The resolution of exclusion of a member from a cooperative society may be compromised in irritual arbitration.
Court of Milan, 20 December 2022, no. 9998
Where the defendant makes a counterclaim, which is contractually devolved to the cognizance of an arbitral court, the state court must declare its lack of jurisdiction in relation to such claim.
Court of Santa Maria Capua Vetere, 21 December 2022, no. 4692
In view of the jurisdictional nature of arbitration and its function as a substitute for ordinary jurisdiction, as inferable from the aforesaid rules, the objection of compromise has a procedural character and integrates a question of jurisdiction.
Court of Latina, 22 December 2022, no. 2416
In the case of public contracts, even if a clause in the call for tenders excludes arbitration jurisdiction, such provision does not affect, in any way, the validity and effectiveness of the tender contract subsequently entered into in non-conformity, since it remains at the parties’ disposal, following the completion of the tender and the conclusion of the typically public phase, to opt for a different assessment regarding the settlement of any disputes from that made at the time the call for tenders was issued.
Court of Bologna, 23 December 2022, no. 3203
The general principle according to which, for the arbitration clause to be effective against the cooperative, it is sufficient that the cooperative member signs the application for admission to the company, with the correlative approval of the bylaws, is subject to derogation by agreement.
Court of Milan, 23 December 2022, no. 10199
The dispute between the company and a shareholder’s heirs, concerning the latter’s status as shareholders, is among those that may be referred to arbitration.
Court of Monza, 29 December 2022, no. 2639
An arbitration clause that refers generically to any dispute arising from a specific legal relationship to which it relates may be interpreted in the sense that oppositions to compulsory execution also fall within the scope of arbitral jurisdiction, unless the dispute concerns non-disposable rights; conversely, oppositions to enforcement actions cannot be arbitrated, as the verification of compliance with public policy procedural rules concerns rights that the parties can never freely dispose of.

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