Law report 2023

Please note that the below English abstracts of Italian decisions were generated using AI to translate the relevant Italian abstract, and the translation was not humanly checked. As a consequence, it could be inaccurate. Nonetheless, it could be useful for non Italian (and non Italian speaking) practitioners to get an overall idea of Italian case law.

Anyone interested in the contect of a specific decision, or looking for a translation into English of its text, may contact the general editor via email (roberto.oliva@arbitratoinitalia.it). 

Supreme Court

• Supreme Court, I Civil Division, 3 January 2023, no. 38
  The mere provision, in the context of an arbitration clause, that the decision of the arbitrators must be rendered in accordance with the law is not sufficient to deem the award appealable pursuant to Article 829(3) of the Code of Civil Procedure for breach of the rules of law applicable to the merits of the dispute.
• Supreme Court, VI Civil Division, 4 January 2023, no. 126
  The declaration made by the lawyer of one party to that of the other that any dispute between the parties can only be dealt with before the ordinary courts has the meaning of a waiver of the arbitral proceedings.
• Supreme Court, I Civil Division, 12 January 2023, no. 704
  The plaintiff has the right to bring an action, instead of before the arbitrators, before the ordinary courts within the term indicated in article 46 of Presidential Decree 1063/1962, and the defendant may request, within thirty days of the notification of the request for arbitration, that the dispute be decided by the courts.
• Supreme Court, I Civil Division, 23 January 2023, no. 1999
  Respect for the principle of cross-examination must be appropriately adapted to the arbitral proceedings, as the parties must be given, in order to enable them to adequately defend themselves, the opportunity to set out their respective assumptions, to examine and analyse the evidence and results of the proceedings, to submit pleadings and replies and to be informed in good time of the opposing claims and requests.
• Supreme Court, VI Civil Division, 24 January 2023, no. 2057
  The objection of compromise, even if raised after the claims on the merits, requires the state court judge to rule on the same, since it cannot be inferred from the error in the grading of the exceptions that the logically preliminary issue has been waived, even though it was raised subsequently.
• Supreme Court, Sec. I Civ, 24 January 2023, no. 2166
  The defect of failure to state reasons referred to in Article 829(1)(5) of the Code of Civil Procedure can be recognised only in those cases in which the grounds of the award are completely non-existent or are so deficient as not to allow the rationale of the decision to be identified, or when they are characterised by the choice of an argumentative procedure that is absolutely unacceptable on a dialectical level, resulting in a sort of non-motivation.
• Supreme Court, II Civil Division, 27 January 2023, no. 2558
  In a contract prepared unilaterally by a professional, the effectiveness of the waiver of the jurisdiction of the courts in favour of that of the arbitrators, like the waiver of the consumer’s jurisdiction, is subject not only to the specific approval in writing provided for by Art. 1341 of the Civil Code, but also – pursuant to Art. 34(4) of Legislative Decree 206/2005 – to the conduct of an individual negotiation with the consumer on the clause itself, the proof of which is charged to the same professional by Art. 34(5) of the aforementioned Legislative Decree.
• Supreme Court, I Civil Division, 2 February 2023, no. 3271
  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 article 829.3 of the Code of Civil Procedure refers – must be identified as the law in force at the time the arbitration agreement was concluded.
• Supreme Court, VI Civil Division, 13 February 2023, no. 4315
  The doubt as to the interpretation of the actual will of the contracting parties must be resolved in the sense of ritual arbitration, as the main model of arbitration, capable of ensuring the greatest guarantees for the parties that have so wished.
• Supreme Court, I Civil Division, 21 February 2023, no. 5369
  In order for there to be an obligation of specific approval in writing of the arbitration clause pursuant to Art. 1341(2) of the Civil Code, it is not sufficient that one of the parties to the contract has approved the arbitration clause, it is not sufficient that one of the parties has drafted the entire content of the contract in such a way that the other party has no choice but to accept or reject it in its entirety, but it is also necessary that the scheme has been drafted and the general terms and conditions have been fixed to serve an indefinite series of relationships, both from a substantive point of view, because they have been drafted by a party that performs contractual activity for an undifferentiated plurality of parties, and from a formal point of view, because their content has been predetermined by means of forms or forms that can be used in series.
• Supreme Court, Full Court, 23 February 2023, no. 5694
  Arbitration proceedings initiated on the basis of an arbitration clause ancillary to a contract and for the assessment of a claim dependent thereon become unfeasible upon the occurrence of the compulsory liquidation of one of the parties to the contract, given the exclusivity of the assessment of liabilities in the bankruptcy proceedings to which the creditor party is in any case bound, pursuant to arts. 52 and 93 of the bankruptcy law, if the relationship is still pending, i.e. not exhausted pursuant to art. 72 of the bankruptcy law.
  The award nevertheless issued, before the expiry of the 60-day period assigned by Article 81 l.bankruptcy law to the insolvency body to declare its possible takeover of the underlying contract and without such a declaration having taken place, is null and void, with the consequent inability to produce effects already with respect to the insolvency proceedings, since the dissolution of the contract as a result of the opening of the competition creates a legal effect ex nunc, only resolutively conditioned on the commissioner’s decision to take over while it is possible and thus the arbitrators, in the case at hand, lack potestas judicandi.
• Supreme Court, VI Civil Division, 24 February 2023, no. 5793
  The favour for arbitral jurisdiction contained in Article 808-quater of the Italian Code of Civil Procedure refers only to cases where the doubt of interpretation concerns the “quantification” of the matter entrusted to the arbitrators by the relevant agreement and not the parties’ choice of arbitration itself. In this perspective, even in the presence of a clause referring to the cognisance of the arbitration board for “any and all disputes”, the reference also to recourse to the ordinary judicial authority renders uncertain the will of the parties on the choice of arbitration itself, thus not allowing the possibility of invoking the provision of article 808-quater of the Code of Civil Procedure.
• Supreme Court, I Civil Division, 1 March 2023, no. 6150
  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 settled the case in relation to them, given the enforceability that the award may assume in this case, whereas immediate appealability must be excluded when the award has decided issues that arose in the arbitration proceedings, but without settling the case.
• Supreme Court, VI Civil Division, 2 March 2023, no. 6221
  Since the arbitration clause is not an ancillary covenant of the contract in which it is inserted, since it has individuality and autonomy, clearly distinct from that of the contract to which it accedes, disputes arising after the termination of the contract also fall within its scope of application when they are dependent on prior facts.
• Supreme Court, I Civil Division, 2 March 2023, no. 6327
  The provision in Article 829.11 of the Code of Civil Procedure shall be interpreted as meaning that, for the purposes of the hypothesis of nullity provided for therein, the contradiction must emerge between the different components of the operative part, and not also between different parts of the grounds compared with each other, or between the grounds themselves and the operative part.
• Supreme Court, I Civil Division, 3 March 2023, no. 6501
  The sole purpose of an appeal against an arbitral award is to ascertain the legitimacy of the decision rendered by the arbitrators, not to review the substantive issues submitted to them, so that the findings of fact made by the arbitrators cannot be censured in an appeal against the award, unless the reasoning on this point is completely lacking or absolutely deficient.
• Supreme Court, I Civil Division, 3 March 2023, no. 6518
  The sole purpose of an appeal against an arbitral award is to verify the legitimacy of the decision rendered by the arbitrators, not to review the substantive issues submitted to them, so that the findings of fact made by the arbitrators cannot be censured in an appeal against the award, unless the reasons on this point are completely lacking or absolutely deficient.
• Supreme Court, I Civil Division, 6 March 2023, no. 6550
  The defect of contradictory reasoning in the grounds of their arbitration award may be challenged on the ground of nullity only when it takes the form of an irreconcilability between parts of the operative part (Article 829(4) of the Code of Civil Procedure) or a contrast between parts of the grounds that is so serious as to make it impossible to reconstruct the ratio decidendi, resulting in a substantial lack of the grounds themselves.
• Supreme Court, II Civil Division, 10 March 2023, no. 7201
  If the arbitration clause under common law was concluded before the entry into force of Legislative Decree 40/2006, the former text of Article 829(2) of the Code of Civil Procedure applies, under which an appeal against the award is permitted, unless the parties have authorised the arbitrators to rule in equity or have declared the award non-appealable. In such a case, however, it is possible to raise or object to errores in iudicando, since the provision of non-appealability precludes only exceptions on the merits, but not also procedural exceptions relating to the invalidity of the clause.
• Supreme Court, I Civil Division, 14 March 2023, no. 7335
  The defect relating to the invalid or irregular constitution of the arbitration panel (also constituted as required by law), arising from the fact that the appointment was made in breach of the methods and forms set forth in Chapters I and II of Title VIII of Book IV of the Civil Code, is not to be ascribed to article 158 of the Code of Civil Procedure, relating to the defect in the constitution of the judge, but to the nullities provided for by article 829, para. 1, no. 2, of the Code of Civil Procedure, inasmuch as the arbitral award, which constitutes a decision for the resolution of the dispute on a private-sector level, cannot in any way approach a jurisdictional dictum; this character was accentuated by law 25/1994, without the amendments made by article 819-ter of the code of civil procedure, introduced by legislative decree 40/2006, leading to a different reconstructive line of the institution.
• Supreme Court, I Civil Division, 5 April 2023, no. 9395
  In the matter of corporate arbitration, where the parties have authorised the arbitrators to decide according to equity, an appeal against the arbitral decision on the ground of errores in iudicando is not permitted, unless it relates to non-compromissible matters or to the validity of shareholders’ meeting resolutions, regardless of whether the arbitration clause was inserted before or after the 2006 reform, since it is irrelevant that ratione temporis art. 36 of Legislative Decree 5/2003 refers to the text of Article 829, para. 3, of the Code of Civil Procedure, resulting from legislative decree 40/2006, or to Article 829(3) of the Code of Civil Procedure in its previous wording.
• Supreme Court, I Civil Division, 5 April 2023, no. 9434
  A challenge to corporate resolutions concerning share capital transactions, whether for the purpose of an increase or reduction, is arbitrable where, on the basis of the prospects offered by the parties, the corresponding dispute does not directly and not merely mediately affect the interests – of the shareholders of the shareholders, of the company or of third parties outside the company – that are protected by mandatory rules, the violation of which determines a reaction of the legal system that is not dependent on any initiative of the parties, otherwise the (substantive) mandatory rights protected by a specific rule regulating them would be devolved to the arbitrators.

Courts of Appeal

• Court of Appeal of Florence, 5 January 2023, no. 21
  The use of a modal regent verb does not infer the mere optionality, and therefore the non-compulsoriness, of arbitration as a means of settling future disputes between the parties.
• Court of Appeal of Rome, 9 January 2023, no. 93
  The control exercised by the judge in the rescinding phase of the appeal for nullity of the arbitral award pursuant to art. 829 of the Italian Code of Civil Procedure is entirely similar to that of the cassation proceedings and is aimed at ascertaining that the arbitrators have logically assessed the facts of the case and congruously motivated their decision.
• Court of Appeal of Messina, 12 January 2023, no. 18
  The activity of the ritual arbitrators is of a jurisdictional nature and substitutes the function of the ordinary judge, so that the determination of whether a dispute falls within the jurisdiction of the former or the latter is a question of jurisdiction, whereas the determination of whether a dispute falls within the jurisdiction of the ordinary judge and, in that context, within the substituted jurisdiction of the ritual arbitrators, or within the jurisdiction of the administrative or accounting judge, gives rise to a question of jurisdiction; Therefore, the question as to whether the dispute cannot be settled by arbitrators, since it is reserved to the jurisdiction of the administrative court, constitutes a question of jurisdiction which, if it arises, the judge challenging the arbitral award is required to examine and decide also ex officio.
• Court of Appeal of Milan, 18 January 2023, no. 141
  The defect of failure to state reasons referred to in Article 829, para. 1, no. 5 of the Code of Civil Procedure can be recognised only in those cases where the grounds of the award are completely non-existent or are so deficient as not to allow the ratio of the decision to be identified, or when they are characterised by the choice of an argumentative procedure that is absolutely unacceptable on a dialectical level, resulting in a sort of non-motivation.
• Court of Appeal of Naples, 20 January 2023, no. 218
  The principle, inferable from Art. 336, para. 1 of the Code of Civil Procedure, also applies to the appeal for nullity of the arbitral award, according to which the reform, even partial, of the first-instance ruling has an effect on the parties dependent on the reformed party – the so-called internal expansive effect – and therefore determines the annulment of the section that ruled on the costs of the dispute; it follows that the appellate court has the power-duty to totally renew, even ex officio, the regulation of such costs, in the light of the final outcome of the case.
• Court of Appeal of Naples, 20 January 2023, no. 222
  In the case of public contracts, between the provision that excludes recourse to arbitration, contained in the tender notice, and the provision that instead provides for an arbitration agreement, contained in the special specifications, the former must be deemed to prevail.
• Court of Appeal of Milan, 24 January 2023, no. 218
  The review of the compatibility of the award with domestic law must concern not the merits of the measure or its reasoning, but rather the operative part of the arbitral decision. Certainly, the preceptive content of the operative part can be identified and filled with meaning through the examination of the expositive and motivating part of the award for the purpose of the conclusive scrutiny of whether the decisum is contrary to public policy, but this does not mean that the competent court’s review may result in a control of the motivation of the measure.
• Court of Appeal of Rome, 24 January 2023, no. 498
  The defect of failure to state reasons referred to in Article 829, para. 1, no. 5 of the Code of Civil Procedure can be recognised only in those cases where the grounds of the award are completely non-existent or are so deficient as not to allow the ratio of the decision to be identified, or when they are characterised by the choice of an argumentative procedure that is absolutely unacceptable on a dialectical level, resulting in a sort of non-motivation.
• Court of Appeal of Rome, 27 January 2023, no. 640
  In the case of an appeal for nullity of an arbitration award, which is subject to binding criticism and may be brought within the limits established by article 829 of the Italian Code of Civil Procedure, the rule of specificity in the wording of the grounds applies, given its rescinding nature and the need to allow the judge, and the other party, to verify whether the objections put forward correspond exactly to those that can be formulated according to the above-mentioned rule.
• Court of Appeal of Lecce, 1 February 2023, no. 119
  Arbitrators are in breach of the principle of cross-examination if they have determined the peremptory nature of the time limits set by them to the parties for submissions and preliminary enquiries and, in connection with such determination, have declared a party forfeited for the late exercise of the right to submit submissions and preliminary enquiries, without the arbitration agreement, or a separate written deed or the rules of procedure drawn up by the arbitrators themselves, providing for the possibility of setting peremptory time limits for the conduct of the defence and without a specific warning as to the peremptory nature of the time limits at the time of their assignment.
• Court of Appeal Catanzaro, 2 February 2023, no. 107
  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 binding rules of the system and does not imply an attenuated notion of public policy, which includes all existing mandatory rules.
• Court of Appeal of Salerno, 2 February 2023, no. 110
  The nullity of the award on the ground of inconsistency is configurable, pursuant to Article 829(1)(11) of the Code of Civil Procedure, when the different components of the operative part are irreconcilable with each other to the point of making it materially unenforceable or there is a contrast between the grounds and the operative part that results in the impossibility of understanding the ratio decidendi of the arbitral ruling.
• Court of Appeal of Rome, 2 February 2023, no. 790
  Since the parties cannot use the procedure provided for by article 814 of the Italian Code of Civil Procedure, they must necessarily resort to ordinary proceedings, to be instituted by a writ of summons, in order to obtain a title that is valid against all the parties to the arbitration proceedings.
  If the dispute is referred to a board of arbitrators, the value of the dispute, which is relevant for the purpose of determining the arbitrators’ fees, is determined a priori on the basis of the petitum, and a ruling by the board of arbitrators that the claim is inadmissible or inadmissible can have no effect, given that a hypothetical criterion for determining the value of the case ex post on the basis of the concrete decisum would be contrary to the rules laid down in the code of civil procedure.
• Court of Appeal of Rome, 6 February 2023, no. 891
  The compromise clause does not preclude the issuance of an injunction decree because the resulting lack of jurisdiction relates to the cognizance of a dispute and, therefore, presupposes cross-examination, which is absent in the monitoring proceedings, and because the exception of compromise is optional and cannot be detected ex officio. Therefore, once a party has decided not to resort to the arbitration procedure and has decided to activate the summary procedure, the same party cannot, once the opposition to the injunction has been filed, object to the lack of jurisdiction of the Ordinary Judicial Authority that it has brought before it.
• Court of Appeal Milan, 17 February 2023, no. 559
  On the subject of arbitration proceedings, the question of the breach of cross-examination does not have to be examined from a formal point of view. Therefore, an arbitral award pronounced pursuant to the Rules of the Chamber of Arbitration of Milan cannot be declared null and void without granting time limits for filing final defence briefs or setting a hearing for discussion, time limits and hearing that under the said Rules are only optional.
• Court of Appeal of Milan, 21 February 2023, no. 586
  The principle set forth in Article 2697 of the Italian Civil Code, concerning the identification of the party bearing the burden of proof, is not a principle of public policy, and therefore its alleged violation is not a ground for invalidation of the award.
  It represents an abuse of process, punishable pursuant to Article 96(3) of the Code of Civil Procedure, when the party attempts to ask the State Judge for a decision on the merits of the disputed matter by challenging the award, disguising as grounds for the nullity of the award what are clearly disputes on the merits.
• Court of Appeal of Rome, 24 February 2023, no. 1388
  Where the arbitration clause contained in the bylaws of an association provides that the third arbitrator, in case of disagreement between the two appointed by the parties, shall be appointed by an association body, it is null and void.
• Court of Appeal of Salerno, 24 February 2023, no. 265
  On the subject of arbitration, the devolution of the dispute to the arbitrators being configured as a waiver of state jurisdiction, through the choice of a solution to the dispute by means of an instrument of a private nature, the relative exception must be considered proper or in the strict sense, inasmuch as its object is the presentation of a fact preventing the exercise of state jurisdiction, with the consequence that it must be proposed by the parties in the time and manner proper to exceptions of merit that cannot be raised ex officio.
• Court of Appeal of Venice, 28 February 2023, no. 457
  The verification of compatibility with the principles of international public order must concern exclusively the effects that the act is intended to produce in the Italian legal system and not also the conformity with domestic law of the foreign law on which the decision is based, nor is any review of the legal correctness of the solution adopted permitted, since the content of the measure whose recognition is sought is excluded.
  The principles of public order are to be identified in the fundamental principles of our Constitution or in those other rules that, although they do not find a place in it, respond to the universal need to protect fundamental human rights, or that inform the entire system in such a way that their violation results in a distortion of the founding values of the entire system.
• Court of Appeal of Palermo, 6 March 2023, no. 462
  On the subject of appealing 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(5) 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 lack of reasoning.
• Court of Appeal of Brescia, 8 March 2023, no. 392
  On the subject of appealing 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(5) 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 at the dialectical level, so as to result in a failure to state reasons.
• Court of Appeal of Milan, 10 March 2023, no. 846
  The dispute concerning the exclusion of a partner of a partnership with only two partners may be submitted to arbitration, as the exclusion ruling is independent from the possible dissolution of the partnership pursuant to Article 2287 of the Italian Civil Code (the latter being subject to the mandatory jurisdiction of the State Court).
• Court of Appeal of Brescia, 21 March 2023, no. 490
  In the case of a company incorporated after the reform pursuant to Legislative Decree No. 40 of 2 February 2006, an appeal against an award rendered on the basis of a statutory arbitration clause may also concern the alleged violation of rules of law applicable to the merits of the dispute only if the arbitral tribunal to decide the matter has been aware of non-compromissible issues or when the subject-matter of the proceedings is the validity of shareholders’ meeting resolutions.
• Court of Appeal of Catanzaro, 21 March 2023, no. 360
  Article 1341 of the Italian Civil Code requires the specific written approval of vexatious or onerous clauses only in the case of a contract by adhesion, i.e. when the clauses are unilaterally prepared by only one party.
• Court of Appeal of Catanzaro, 21 March 2023, no. 362
  Since the devolution of the dispute to the arbitrators is configured as a waiver of state jurisdiction, through the choice of a solution to the dispute by means of an instrument of a private nature, the related objection must be considered proper or in the strict sense, as it concerns the presentation of a fact preventing the exercise of state jurisdiction, with the consequence that it must be proposed by the parties in the time and manner proper to exceptions on the merits that cannot be raised ex officio.
• Court of Appeal of Rome, 28 March 2023, no. 2282
  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 contract itself fall within the jurisdiction of arbitration, with the exclusion of those that have, in it, only a historical premise.
• Court of Appeal of Milan, 30 March 2023, no. 1105
  Article 829(11) of the Code of Civil Procedure provides for the nullity of an 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 Naples, 31 March 2023, no. 1507
  The first sentence of article 819-ter, para. 1 of the Code of Civil Procedure, in providing that the jurisdiction of 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 has been submitted, that the existence of arbitral jurisdiction must be verified with specific reference to each of them, since the entire dispute cannot be referred to arbitrators (or to the ordinary court) by virtue of the mere connection.
• Court of Appeal of Perugia, 3 April 2023, no. 239
  In the case of informal arbitration, the violation of the principle of cross-examination does not arise as a defect of the proceedings, but as a breach of the mandate contract and can only be relevant for the purposes of an appeal pursuant to article 1429 of the Italian civil code. Consequently, the party challenging the award must bear the burden of proving, in concreto, the error in the appreciation of the reality in which it is alleged that the arbitrators incurred.
• Court of Appeal of Milan, 4 April 2023, no. 1148
  The internal contradiction between different parts of the grounds determines the nullity of the award only if it prevents the reconstruction of the logical and legal path underlying the decision.
• Court of Appeal of Milan, 4 April 2023, no. 1173
  The scope of an arbitration agreement that contains an indication of the disputes to be referred to arbitrators with reference to certain abstract facts, such as, for example, the interpretation and execution of a contract, must be reconstructed, pursuant to Art. 1362 of the Civil Code, on the basis of the common will of the parties to the arbitration agreement, on the basis of the common will of the parties to the dispute, without limiting itself to the literal meaning of the words; therefore, when the clause contains a reference to legal definitions as a summary of the possible subject matter of future disputes, they do not assume the purpose of circumscribing the content of the arbitration agreement, since a restrictive interpretation of the clause would entail the need to submit to two different bodies (arbitrator and ordinary judge) the decision of closely connected issues with an extension of the time required for the proceedings.
• Court of Appeal of Brescia, 5 April 2023, no. 589
  Expenses incurred in connection with arbitration proceedings that have become unsuccessful due to the other party’s breach of the arbitration agreement represent an item of damages, in relation to which a claim for compensation must be brought.
• Court of Appeal of Palermo, 6 April 2023, no. 576
  Article 54 of Law 392/1978, which prohibited the arbitration of disputes, must be deemed to have been repealed by Article 14(4) of Law 431/1998 also with reference to non-housing leases.
• Court of Appeal of Brescia, 11 April 2023, no. 625.
  The provisions limiting the maximum amount of interest represent rules of public policy, the breach of which may therefore lead to the annulment of the award.
• Court of Appeal of Florence, 14 April 2023, no. 766
  In the case of the simultaneous submission of the objection of compromise and counterclaim, the former cannot be considered 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 merits of the latter being incompatible with the examination of the counterclaim.
• Court of Appeal of Palermo, 26 April 2023, no. 833
  In order to distinguish between regular and informal arbitration, the arbitration clause must be interpreted with reference to the literal fact, the common intention of the parties and their overall conduct, and the fact that the clause does not refer to the formalities of regular arbitration does not unequivocally suggest that arbitration is informal, since the greater guarantees offered by regular arbitration as regards the enforceability of the award and the system of appeals must be taken into account.
• Court of Appeal of Milan, 3 May 2023, no. 1397
  The party that has commenced an arbitration proceedings is not allowed to invoke the nullity of the award arising from the invalidity of the arbitration clause, as this is precluded by the provisions of Article 829(2) of the Code of Civil Procedure, pursuant to which the party that has given rise to the ground of nullity or has renounced it may not challenge the award on that ground.
• Court of Appeal of Milan, 8 May 2023, no. 1477
  Where an extra-contractual liability may arise with profiles also involving other legal entities not parties to the negotiation agreement containing the arbitration clause, arbitral jurisdiction must necessarily be denied. Where, on the other hand, any unlawful conduct is part of a contractual context, the expansive vis of the waiver of the ordinary court’s jurisdiction is undoubtedly preferable, also in order to avoid a fragmentation, the result only of qualifications made by the parties: qualifications that are, moreover, rooted in the same historical-naturalistic facts, always involving the same parties.
• Court of Appeal of Milan, 9 May 2023, no. 1492
  An appeal against an award on grounds of nullity has the character of a limited appeal and does not introduce an appellate judgment aimed at reviewing the merits of the arbitral decision. It allows only the ascertainment of the existence of the nullities peremptorily listed in article 829 of the Italian Code of Civil Procedure, as a consequence of errors in procedendo or in iudicando, with the consequence that only in the event of a rescindent judgement, concluded with the ascertainment of the nullity of the award, is it possible to review the merits of the arbitral decision that is the subject of the possible subsequent iudicium rescissorium.
• Court of Appeal of Catanzaro, 10 May 2023, no. 582
  The defect of contradiction that allows the award to be pronounced null and void consists in an obvious contradiction between several parts of the operative part or contradiction between the operative part and the grounds, being essentially a defect that is characterised by making the content of the decision unintelligible. On the other hand, the defect in question does not include internal contradictions between the different parts of the grounds, which can be considered a defect of the award only to the extent that they make it absolutely impossible to reconstruct 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 Bari, 11 May 2023, no. 761
  The only 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 grounds on this point are completely lacking or absolutely deficient.
• Court of Appeal of Milan, 16 May 2023, no. 1579
  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, 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 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.
• Court of Appeal of Cagliari, ord. 16 May 2023
  Unlike the provisions of Article 283(1) of the Code of Civil Procedure with reference to the suspension of the enforceability of judgments at first instance, the application for suspension of the enforceability of an arbitral award, as referred to in Article 830(1) of the Code of Civil Procedure, does not necessarily have to be made with the appeal. Moreover, it may be modified or revoked, since Article 351(1) of the Code of Civil Procedure does not apply either.
• Court of Appeal Rome, 16 May 2023, no. 3473
  An appeal for nullity of the award in the event that the arbitration agreement is invalid is allowed on condition that the party has objected in the first defence following the acceptance of the arbitrators to the latter’s lack of jurisdiction due to the invalidity of the arbitration agreement or the arbitration clause (except in the case of a non-arbitrable dispute).
  The subject matter of civic uses does not fall within the category of non-disposable rights, and therefore insusceptible of knowledge by the arbitrators pursuant to art. 806 of the code of civil procedure.
• Court of Appeal of Florence, 17 May 2023, no. 1047
  In the case of the bankruptcy of a s.r.l., pursuant to section 146(2)(a) of the bankruptcy law, the liquidator is the only person entitled to pursue the corporate liability action already brought by the shareholder in his capacity as the company’s procedural substitute pursuant to section 2476(3) of the Italian Civil Code, so that if, during the pendency of the arbitration proceedings, the receiver does not manifest his intention to continue the action originally brought, the application must be declared inadmissible due to the shareholder’s lack of standing.
• Court of Appeal of Venice, 17 May 2023, no. 1087
  Article 3 of Law 129/2004, which imposes precise disclosure obligations on the franchisor, is not a public policy provision, and therefore its violation by a foreign arbitral tribunal is not capable of preventing the recognition and enforcement of the award.
• Court of Appeal of Messina, 22 May 2023, no. 439
  Pursuant to the transitional rules laid down by Article 27 of Legislative Decree 40/2006, Article 829(3) of the Code of Civil Procedure as modified by article 24 of legislative decree 40/2006, applies to arbitration proceedings commenced after the entry into force of the aforementioned decree, but the law to which the same article 829(3) of the Code of Civil Procedure refers, in order to establish whether the award may be set aside for violation of the rules of law relating to the merits of the dispute, is the law in force at the time the arbitration agreement is entered into.
• Court of Appeal of Milan, 22 May 2023, no. 1646
  Article V of the New York Convention (in accordance with Art. 840 of the Code of Civil Procedure) does not preclude the recognition of an award rendered on the basis of an arbitration clause under German law, contained in general terms and conditions referred to in order confirmations.
• Court of Appeal of Lecce, 23 May 2023, no. 449
  In arbitration proceedings, where the parties have not bound the arbitrators to abide by the rules of the Code of Civil Procedure, the parties are allowed to modify and extend the initial claims, without the provisions of Art. 183 of the Code of Civil Procedure being applicable, provided that the parties are allowed to present their cases.

Courts of first instance

• Court of Brescia, 4 January 2023, no. 10
  The possibility for a party to express an opinion affecting the contractual regulation excludes the application of Article 1341 of the Italian Civil Code and therefore the necessary approval in writing of the arbitration clause.
• Court of Florence, ord. 4 January 2023
  Pending the establishment of the Arbitration Court, it is possible to apply to the Court pursuant to Article 669-quinquies of the Italian Code of Civil Procedure in order to obtain the necessary precautionary measures.
• Court of Venice, ord. 4 January 2023
  The arbitrator’s right to receive payment of the fee arises from the fact that he has actually performed the task, without, in the summary liquidation procedure provided for by Article 814 of the Code of Civil Procedure, the right to receive payment of the fee, Once the award has been pronounced, the President of the Court is not allowed to investigate the validity of the compromise and the award and the regularity of the appointment of the arbitrators, matters included in the provision of article 829 of the code of civil procedure and reserved to the jurisdiction of the appellate court indicated in article 828 of the code of civil procedure.
  If the dispute is referred to an arbitral tribunal, the value of the dispute, which is relevant for the purposes of calculating the arbitrators’ fees, is determined a priori on the basis of the petitum, without any effect being given to a ruling by that tribunal, even if only of inadmissibility or impropriety of the application, given that a hypothetical criterion of ex post determination of the value of the case on the basis of the concrete decisum would be contrary to the rules laid down in the Code of Civil Procedure.
  The payment of the remuneration to the secretary of the arbitral tribunal, understood as a liability related to the performance of the arbitrators’ activities and, as such, a burden on the parties, falls within the jurisdiction of the judge who provides for the payment of the arbitrators’ fees and expenses pursuant to article 814 of the code of civil procedure.
• Court of Bologna, 9 January 2023, no. 10
  The social or collective or super-individual nature of the interest underlying the action does not per se exclude the arbitrability of the dispute arising in the corporate sphere since the interest is only unavailable if its protection is ensured by mandatory rules, as, for example, in the case of rules aimed at ensuring the clarity and accuracy of financial statements.
• Court of Catanzaro, 10 January 2023, no. 24
  The arbitration clause must in any event be specifically approved in writing in view of its vexatious nature [per incuriam].
• Court of Cosenza, 10 January 2023, no. 33
  On the subject of informal arbitration, when the parties have assigned to the arbitrators the power to adopt decisions according to law, the award thus pronounced, given its informality, is appealable only on the grounds of incapacity and defects of will of the arbitrators, excluding errors of judgement and appreciation.
• Court of Milan, 10 January 2023, no. 135
  The rules aimed at ensuring the clarity and accuracy of the financial statements are mandatory as their violation determines a reaction of the system regardless of the conduct of the parties and renders the approval resolution unlawful and, therefore, null and void. These rules, in fact, are not only mandatory, but contain principles dictated to protect not only the interest of the individual shareholders in being informed of the company’s management performance at the end of each financial year, but also the trust of all persons who enter into a relationship with the company, who are entitled to know the company’s actual equity and financial situation. It follows that the dispute concerning the validity of the resolution to challenge the financial statements is not arbitrable.
• Court of Naples, 12 January 2023, no. 347
  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, which is absent in the monitoring proceedings) and because the exception of compromise is optional and cannot be detected ex officio.
• Court of Pisa, 12 January 2023, no. 62
  The dispute concerning the right of the withdrawn shareholders to obtain the liquidation share is devolved, where the company’s bylaws contain an arbitration clause, to the jurisdiction of the Arbitration Court.
• Court of Florence, 16 January 2023, no. 97
  In the event of doubt as to the actual will of the contracting parties, one must opt for the arbitration to be non-arbitration, considering that ritual arbitration, by introducing an exception to the jurisdiction of the state court, is exceptional in nature [per incuriam].
• Court of Pavia, 17 January 2023, no. 58
  In the event of an objection to an arbitration agreement raised by the defendant pursuant to Article 819-ter of the Code of Civil Procedure to which the plaintiff adheres, the rules on procedural agreement provided for in Article 38(2) of the Code of Civil Procedure cannot be applied since this provision refers to the derogating territorial jurisdiction. Therefore, as to the costs of the proceedings, the court, taking into account the conduct of the plaintiff, orders him to reimburse them in favour of the defendant.
• Court of Bologna, 18 January 2023, no. 52
  The interpretative favour towards ritual arbitration can only be disclaimed in the face of unequivocal expressions of the contracting parties in the sense of the devolution of the settlement of the dispute to a negotiation instrument, by means of an amicable settlement or a settlement agreement traceable to the will of the parties themselves, who undertake to consider the arbitrators’ decision as an expression of their will.
• Court of Catanzaro, 18 January 2023, no. 99
  Matters relating to directors’ remuneration may also be submitted to arbitration if the articles of association provide for an arbitration clause to settle disputes between directors and the company.
• Court of Benevento, 20 January 2023, no. 195
  The principle of the prevalence of the ordinary judge’s jurisdiction over the arbitral one, affirmed in the past by the Court of Cassation, must now be considered superseded.
• Court of Naples North, 23 January 2023, no. 686
  The rule set forth in Article 1341 of the Italian Civil Code, which requires the specific written approval of the arbitration clause, does not apply outside adhesion contracts.
• Court of Pavia, ord. 24 January 2023
  When a final award has not been pronounced, the request for payment of the arbitrators’ fees gives rise to an ordinary dispute on the right to receive payment of the fees for the fact of having actually performed the task conferred, within the scope of the mandate relationship between the parties, according to the forms of the ordinary procedure.
• Court of L’Aquila, 25 January 2023, no. 61
  In the event of an objection to an arbitration agreement raised by the defendant pursuant to Article 819-ter of the Code of Civil Procedure to which the plaintiff adheres, the rules on procedural agreement provided for by Article 38, para. 2 of the Code of Civil Procedure cannot be applied, given that such provision refers to the derogable territorial jurisdiction. Therefore, as far as the costs of the proceedings are concerned, the court, taking into account the conduct of the plaintiff, orders the plaintiff to reimburse them in favour of the defendant.
• Court of Catanzaro, 27 January 2023, no. 166
  Disputes relating to shareholders’ meeting resolutions having an unlawful or impossible purpose – which give rise to nullity that can also be raised ex officio – and those passed in the absolute absence of information (Article 2479-ter of the Italian Civil Code) belong to non-transferable rights, and therefore cannot be referred to arbitrators. ): the latter cannot include the failure to convene a shareholder, which may, in theory, vitiate the resolution, but which, according to the definition given, does not constitute an inalienable right, the area of which must be considered circumscribed to those interests protected by mandatory rules, the violation of which determines a reaction of the system that is not subject to any party initiative.
• Court of L’Aquila, 1 February 2023, no. 86
  The objection of compromise is of a procedural nature and integrates a question of competence, which must be raised by the interested party, under penalty of forfeiture and consequent entrenchment at the court seized of the power to decide on the proposed request, in the response appearance and within the term fixed by article 166 of the code of civil procedure.
• Court of Bari, 1 February 2023, no. 334
  Article 808-quater of the code of civil procedure is an expression of the legislator’s favour for the use of alternative dispute resolution instruments to the state jurisdiction, which allows, in the absence of an express manifestation of will to the contrary, to broaden the scope of application of an arbitration clause referring generically to disputes arising from the contract to which the arbitration clause relates, so as to include all disputes having their causa petendi in the contract itself.
• Court of Naples, 2 February 2023, no. 1183
  The arbitration clause contained in an adhesion contract must be specifically approved in writing.
• Court of Teramo, 2 February 2023, no. 69
  For the purposes of identifying the means by which the award is to 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 can be challenged only pursuant to art. 827 et seq. of the Code of Civil Procedure.
• Court of Venice, 6 February 2023, no. 256
  The dispute in which compensation is claimed for damages resulting from alleged unlawful conduct exercised by the defendants in their capacity as shareholders and in the context of the exercise of their voting rights certainly relates to available rights inherent in the corporate relationship and therefore falls within those subject to arbitration, where the articles of association contain an arbitration clause.
• Court of Bergamo, decr. 7 February 2023
  The validity (and therefore also the effectiveness) of the arbitration clause must be assessed independently of the contract to which it refers.
• Court of Venice, 9 February 2023, no. 281
  In relations between arbitrators and state courts, the question of jurisdiction must be decided on the basis of the allegations of the parties, regardless of the merits of the claim.
• Court of Milan, 13 February 2023, no. 1125
  The adherence of the opposing defendant to the indication of the arbitration jurisdiction made by the opposing plaintiff does not entail the applicability of article 38, para. 2 of the Code of Civil Procedure, so that the judge cannot pronounce an order to remove the case from the register but, in the exercise of his functional and mandatory jurisdiction over the opposition, must declare by judgment the lack of jurisdiction of the judge who issued the decree and, consequently, the nullity of the same, settling the costs of the litigation.
• Court of Lodi, 14 February 2023, no. 118
  In the case of a contract whose content is derived from general terms and conditions prepared by a contractor, the clause devolving to an arbitration board any dispute between the parties must be specifically and independently approved.
• Court of Santa Maria Capua Vetere, 14 February 2023, no. 580
  The existence of an arbitration arbitration clause does not exclude the jurisdiction of the ordinary court to issue an injunction, both because the rules of arbitration proceedings, governed by the general rule of respecting the cross-examination of the parties, do not contemplate measures to be issued inaudita altera parte, and because in the monitory proceedings the lack of jurisdiction cannot be detected ex officio since the dispute is referred to arbitrators.
• Court of Florence, 20 February 2023, no. 508
  The arbitration clause included in a company’s memorandum of association, which provides for the possibility of referring disputes between shareholders, disputes between the company and its shareholders as well as disputes brought by directors and statutory auditors, in connection with company business or the interpretation or execution of the company’s bylaws, to arbitrators, does not also include liability actions pursuant to Article 2476 of the Italian Civil Code.
• Court of Latina, 20 February 2023, no. 386
  In the presence of a third party’s own call by the defendant, who claims that passive legitimacy belongs to the third party who is, therefore, involved in the action on the basis of the same title as the defendant, the plaintiff’s claim against the defendant automatically extends to the third party. It follows that the arbitration agreement between the defendant and the third party does not apply.
• Court of Pistoia, 20 February 2023, no. 128
  In the case of a contract between a consumer and a professional, the arbitration clause must be deemed vexatious.
• Court of Turin, 21 February 2023, n. 759
  A dispute challenging the resolution approving the financial statements of a company is not arbitrable, given that the rules intended to guarantee the relevant requirements are not only mandatory but, since they are 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 also of the trust of all the persons who enter into a relationship with the company, who are entitled to know the equity and financial situation of the entity, transcend the interest of the individual and belong, therefore, to non-transferable rights.
• Court of Florence, 24 February 2023, no. 554
  The statutory arbitration clause is not applicable to the liability action brought by the administrator pursuant to Article 146 of the bankruptcy law.
• Court of Rome, 24 February 2023, no. 3205
  The dispute concerning the payment of the price agreed upon for the sale of the shares is entirely extraneous to the company’s relationship with the company and is therefore not attributed to the jurisdiction of the arbitration court under the arbitration clause contained in the company’s bylaws.
• Court of Venice, 24 February 2023, no. 372
  Even where the arbitration clause does not adequately identify the arbitral institution called upon to administer the proceedings, the arbitration agreement must be read as extensively as possible by virtue of the so-called “favor arbitrati” principle and therefore an interpretation that gives meaning to the choice made by the parties, who undoubtedly did not opt for the jurisdiction of the state court, pursuant to Article 808-quater of the Italian Code of Civil Procedure.
• Court of Rome, 27 February 2023, no. 3255
  Where there are several related claims, only some of which fall within the jurisdiction of arbitration, the latter is absorbed and excluded from the ordinary jurisdiction [per incuriam with respect to Article 819-ter of the Code of Civil Procedure].
• Court of Naples, 1 March 2023, no. 2228
  In the face of several connected claims, only some of which fall within the jurisdiction of arbitration, the latter is absorbed and excluded from the ordinary jurisdiction, given the need for simultaneus processus and the natural prevalence of state jurisdiction over arbitration [per incuriam with respect to art. 819-ter of the code of civil procedure].
• Court of Venice, ord, 2 March 2023
  The judicial authority retains the power of caution where, despite the commencement of arbitration proceedings, the body is not yet constituted.
• Court of Venice, 2 March 2023, No. 411
  The existence of an arbitration clause does not exclude the State 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), but requires the latter, in the event of a subsequent objection based on the existence of such clause, to declare the opposed decree null and void and at the same time to refer the dispute to the arbitrators.
• Court of Florence, 6 March 2023, no. 674
  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 a subsequent objection based on the existence of such clause, to declare the nullity of the opposed decree and at the same time refer the dispute to arbitrators.
• Court of Rome, 7 March 2023, no. 3752
  In the presence of an arbitration clause in the articles of association, the dispute relating to a shareholder’s contribution obligation, even when brought pursuant to Article 150 of the Bankruptcy Law, is referred to arbitration.
• Court of Lecco, 13 March 2023, no. 145
  The arbitration clause generically referring to disputes arising from a contract must be interpreted in the sense of ascribing to arbitration jurisdiction all disputes referring to claims having their causa petendi in the contract to which the arbitration clause is annexed, with the consequent exclusion of disputes in respect of which that contract is merely a historical premise.
• Court of Taranto, 15 March 2023, No. 585
  On the subject of general terms and conditions of contracts, the effectiveness of onerous clauses – which include the arbitration clause – is subject to specific approval in writing only in cases where the clauses are included in negotiated structures intended to regulate an indefinite series of relationships, both from a substantive point of view (i.e., if they are drafted by a contracting party performing contractual activity for an undifferentiated plurality of persons) and from a formal point of view (i.e., if they are predetermined in their content by means of forms or forms to be used in series); the mere activity of drafting the contractual regulations is to be kept distinct from the drafting of the general terms and conditions of the contract, since contractual terms and conditions drafted by one of the parties in anticipation of and with reference to a single, specific transaction, and to which the other party may, quite legitimately, request to make the necessary amendments after having freely appreciated their content, cannot be considered as such.
• Court of Naples, 21 March 2023, no. 3037
  Neither the conferral on the arbitrators of the power to decide according to equity, i.e. in the capacity of amicable arbitrators, nor the prior attribution to the arbitral decision of the character of non-appealability, nor the provision of the exemption of the arbitrators from the obligation to make the arbitration decision in accordance with the law of the state of the country in which the contract is to be concluded, can be considered decisive elements to configure the arbitration as informal and to exclude the ritual arbitration, nor the provision that the arbitrators be exempt from procedural formalities, since, for the purposes of a correct interpretation of the parties’ will in the sense of ritual arbitration, terminological expressions congruent with the activity of judging and with the result of a judgement on a dispute must be used.
• Court of Pisa, 21 March 2023, no. 431
  The procedural conduct of the defendant, who remained contumacious, together with the peaceful non-detectability ex officio of the objection of compromise, allow for the jurisdiction of the state court to be confirmed, even in the presence of an arbitration clause in the contract underlying the claim.
• Court of Civitavecchia, 22 March 2023, no. 307
  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 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 Milan, 24 March 2023, no. 2412
  The arbitration clause contained in a company’s by-laws, which, failing to comply with the requirement of Article 34 of Legislative Decree No. 5 of 17 January 2003, does not provide that the appointment of arbitrators must be made by a person extraneous to the company, is null and void even in the case of an informal arbitration.
• Court of Torre Annunziata, 24 March 2023, no. 854
  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 such clause, to declare the nullity of the opposed decree and the simultaneous submission of the dispute to the arbitrators.
• Court of Naples, 27 March 2023, no. 3225
  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 Venice, 27 March 2023, no. 549
  The dispute in which the liquidation of the share due to a shareholder following withdrawal is sought certainly concerns disposable rights inherent in the corporate relationship and therefore falls within those subject to arbitral jurisdiction, where the company’s articles of association contain an arbitration clause.
• Court of Naples, 28 March 2023, no. 3246
  The self-assessment of fees by arbitrators is a source of obligation only in the event it is accepted by both parties, failing which the arbitrators must necessarily resort to the procedure pursuant to Article 814 of the Italian Code of Civil Procedure, or resort to ordinary proceedings at the initiative of the parties themselves.
• Court of Bologna, 30 March 2023, no. 732
  The arbitration clause included in a company’s memorandum of association, which provides for the possibility of referring to arbitrators only disputes between the shareholders and those between the company and the shareholders, does not also include the liability action pursuant to Article 2476 of the Italian Civil Code brought by the shareholder against the director, since it is irrelevant that the latter is also a shareholder of the company.
• Court of Venice, 30 March 2023, no. 578
  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 the ordinary courts, implies, with reference to the hypothesis in which a plurality of claims has been brought, that the existence of the arbitral jurisdiction is to be verified with specific regard to each of them, as it is not possible to refer the entire dispute to the arbitrators (or to the ordinary courts) by virtue of the mere connection; Therefore, where the related claims do not give rise to a necessary lis pendens, the acceptance of the regulation of jurisdiction entails the 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.
• Court of Rome, 31 March 2023, no. 5248
  In informal arbitration, given its nature aimed at integrating a manifestation of the will of the parties in substitution for that of the conflicting parties, the award can be challenged only for flaws that may affect such manifestation of will, with the consequent exclusion of the challenge for nullity provided for by Article 828 of the Italian Code of Civil Procedure; therefore, the error of the arbitral judgement, deducible in the challenge, in order to be relevant, must integrate the essentiality and recognisability required by Articles 1429 and 1431 of the Italian Civil Code, while the error committed by the arbitrators with reference to the determination adopted on the basis of the conviction reached after interpreting and examining the elements acquired is not relevant.
• Court of Teramo, 4 April 2023, no. 320
  In the presence of a simultaneous proposal before the ordinary court of several related claims, some of which fall within its jurisdiction and others within the jurisdiction of the irritual arbitrators, there is no vis attractiva of the latter towards the ordinary court. This solution, however, does not derive from the application of article 818-ter of the code of civil procedure, a rule governing the relationship between judicial authorities and (ritual) arbitrators, but from the observation in general terms of the irritual arbitration as an instrument that excludes judicial protection and with it any analogical application of the procedural rules dictated for ritual arbitration.
• Court of Milan, 11 April 2023, no. 2899
  The right of a company director to remuneration for the office held is unquestionably a property right available to its owner, therefore it is and remains absolutely compromisable.
• Court of Pisa, 13 April 2023, no. 539
  The irreconcilable contrast between two provisions – one founding arbitral jurisdiction, the other indicating a conventional forum – must be resolved in favour of the confirmation of ordinary jurisdiction, arbitration being an exception to the former.
• Court of Venice, 14 April 2023, no. 641
  There is no coincidence between the sphere of nullities and the narrower area of the unavailability of the right, since the latter area exclusively includes irremediable nullities, for which only the regime of absolute non-derogation and therefore the absolute unavailability and non-compromisability of the relative right remains. Consequently, the dispute concerning the nullity of a corporate resolution due to the shareholder’s failure to be convened, subject to the amnesty regime set forth in Article 2379-ter of the Italian Civil Code, may be referred to arbitrators.
• Court of Venice, 14 April 2023, no. 642
  The dispute challenging the resolution approving the company’s financial statements for lack of the requirements of truth, clarity and precision cannot be submitted to arbitration.
• Court of Venice, 14 April 2023, no. 643
  Even in the case of a challenge to corporate resolutions, the existence of arbitral jurisdiction must be verified with specific regard to each of them, since the entire dispute cannot be referred to arbitrators (or to the ordinary courts) by virtue of the mere connection.
• Court of Florence, 17 April 2023, no. 1134
  The arbitration clause included in a company’s memorandum of association, which provides for the possibility of referring disputes between shareholders and disputes between the company and its shareholders to arbitration, cannot be automatically extended to disputes involving directors, liquidators or statutory auditors, as it is necessary for this purpose that there be an express extension of the scope of the clause.
• Court of Vicenza, 17 April 2023, no. 701
  The deduction of the existence of an arbitration agreement or an arbitration clause for informal arbitration does not entail a jurisdictional issue, since it entails the inadmissibility of the request for waiver of the action, given that, with informal arbitration, the arbitrators are entrusted with the performance of a negotiation activity in substitution of the parties, and certainly not with the exercise of a jurisdictional function.
• Court of L’Aquila, 19 April 2023, no. 275
  The arbitration clause contained in the articles of association of a company, which provides for the devolution to arbitrators of disputes connected to the company contract, must be deemed to extend also to the dispute concerning the shareholder’s withdrawal from the company.
• Court of Bologna, 19 April 2023, no. 879
  Only those disputes concerning the challenge of shareholders’ meeting resolutions 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 withdraw from the company, with those taken in the absolute absence of the right to withdraw from the company, 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 for by Article 2379-bis of the Italian Civil Code, can be referred to arbitrators.
• Court of Ravenna, 19 April 2023, no. 293
  The existence of an arbitration clause does not exclude the ordinary judge’s jurisdiction 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 a subsequent objection based on the existence of said clause, to declare the opposed decree null and void and at the same time to refer the dispute to the arbitrators.
• Court of Cosenza, 20 April 2023, no. 705
  The right of the arbitrators to receive payment of their fees arises from the fact that they have actually performed the task conferred on them, within the framework of the mandate relationship between the parties, and is independent of the validity and effectiveness of the award, with the result that the right to receive remuneration for the performance of the mandate is not affected in the event of the invalidity of the award itself.
• Court of Bari, 24 April 2023, no. 1519
  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 Civitavecchia, 24 April 2023, no. 446
  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), but requires the latter, in the event of a subsequent objection based on the existence of said clause, to declare the opposed decree null and void and at the same time to refer the dispute to the arbitrators.
• Court of Florence, 26 April 2023, no. 1256
  An arbitration clause in the articles of association devolving to arbitrators all disputes arising between shareholders or between shareholders and the company, directors, liquidators or auditors, having as their object disposable rights relating to the company’s relationship, does not concern disputes between the company and directors.
• Court of Milan, 26 April 2023, no. 3333
  An arbitration clause providing for the devolution to arbitrators of disputes arising in the course of the relationship, accompanied by another clause attributing jurisdiction to a state court, must be interpreted as meaning that disputes between the parties are referred to the jurisdiction of arbitrators only during the relationship, but no longer after its termination.
• Court of Bari, 28 April 2023, no. 1594
  The arbitration clause referring generically to disputes arising out of the contract shall be interpreted, in the absence of express will to the contrary, as covering all and only disputes having causa petendi in the contract itself and does not extend its effects to disputes relating to another contract even if related to the main one.
• Court of Patti, 28 April 2023, no. 418
  The existence of an arbitration clause devolving to an arbitration board all disputes that may arise between the parties does not exclude per se – without an express reference – that the alternative jurisdiction of the state court may apply to any dispute that may arise.
• Court of Patti, 28 April 2023, No. 420
  The existence of an arbitration clause devolving to an arbitration board all disputes that may arise between the parties does not exclude per se – without an express reference – that the alternative jurisdiction of the state court may apply to any disputes that may arise.
• Court of Florence, ord. 3 May 2023
  The jurisdiction of the State Courts to issue interim measures must be ascertained at the time the application is made, it being irrelevant that at a later time, prior to the issuance of the decision, the arbitral tribunal was constituted.
• Court of Palermo, 4 May 2023, no. 2095
  The dispute between the trustor and the trustee does not concern the corporate relationship and with respect to it that relationship is merely a prerequisite, extraneous to the matter in dispute, and therefore incapable of justifying the attribution of the dispute to the jurisdiction of the arbitrators.
• Court of Bari, 9 May 2023, no. 1764
  “Irrituale” arbitration is aimed at the issuance of a contractual determination having the effects of a contract between the parties. This peculiarity of “irrituale” arbitration is reflected with regard to its possible appeal: in fact, Article 828 of the Italian Code of Civil Procedure does not apply, which, with regard to the award, allows to file an appeal before the Court of appeal, whereas the proper venue to hear an appeal against an “irrituale” award will always be the Court of first instance.
• Court of Patti, 12 May 2023, No. 490
  In “irrituale” arbitration, an award may be challenged for essential error only when the will of the arbitrators has been diverted by an altered perception or by a false representation of the reality and of the 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 error of assessment). As a consequence, the arbitration 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 arbitration award voidable on the ground of erroneous application of the rules of contractual hermeunics or, a fortiori, on the ground of an appreciation of the contractual results that differs from that considered by the arbitrators and does not conform to the expectations of the challenging party. It follows that the irritual arbitration award cannot be challenged for errors of law, but only for flaws that may vitiate any manifestation of negotiating will, such as error, violence, wilful misconduct or incapacity of the parties that conferred the task and of the arbitrator himself.
• Court of Potenza, 17 May 2023, no. 610
  The fact that the parties cannot dispose of the right constitutes the limit to recourse to the arbitration clause and should not be confused with the fact that the parties cannot derogate the law applicable to the legal relationship, which does not prevent it from being heard by arbitrators, whereby the violation of the mandatory rule can be ascertained without determining with the award effects prohibited by law.
• Court of Piacenza, 24 May 2023, no. 309
  The “irrituale” arbitral award can only be challenged on the grounds of flaws that may vitiate any manifestation of the parties will, such as error, violence, wilful misconduct and incapacity of the parties appointed the arbitrator, or of the arbitrator himself: in particular, the relevant error is only the one pertaining to the formation of the will of the arbitrators, which is configured when they have had a false representation of reality due to not having seen the elements of the dispute or having assumed others to be non-existent, or for having given as contested facts that were undisputed or vice versa, while any challenge is precluded for errors of law, both with regard to the assessment of the evidence, and with reference to the suitability of the decision adopted to settle the dispute.
• Court of Rome, 25 May 2023, no. 8280
  In the event of a company’s bankruptcy, the arbitration clause contained in its articles of association is not applicable to the liability action brought by the receiver pursuant to Article 146 of the bankruptcy law.
• Court of Messina, 29 May 2023, no. 1058
  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 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 Milan, 30 May 2023, no. 4467
  The enforceability against the bankruptcy of the arbitration clause in the company’s article of association does not preclude the Court from hearing the liability action brought by the mass of creditors with reference to all the charges pursuant to Article 2394-bis of the Italian Civil Code.