It is quite usual that, when inserting an arbitration clause in an agreement, a party would like to preserve its right to file with the Court a request for a payment order (which is an ex parte order). The purpose would be to attain a temporarily enforceable payment order, since it would be an effective and fast solution to protect its rights.
Nonetheless, the outcomes of such choice could be different from those expected. The VI Civil Chamber of the Supreme Court, in its order no. 21666 of 23 October 2015 (Italian text available here), analysed the possible consequences.
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A recent judgment of the Supreme Court (decision no. 18707 of 22 September 2015, Italian text available here) dealt with a very peculiar case. A party objected that an arbitration clause was unenforceable, since it included an additional preposition (more precisely the preposition “di”, which in Italian means “of”).
In this case, the Supreme Court, as well as the Court of first instance, avoided a formalistic excess. The Court did not repeat the old case, referred to by Gaius, in which a party lost the case due to a lexical mistake.
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The First Civil Chamber of the Supreme Court requested the First President of the Court to transfer to the Supreme Court sitting en banc a case concerning the relationship between arbitration and the limitation period provided for by a specific statue of limitations. The dispute concerned Article 2527(3) of the Italian Civil Code, which states that the member excluded from a cooperative company is entitled to challenge the relevant resolution within 30 days of its communication. The current rule in force is Article 2533(3) of the Italian Civil Code, which extended the limitation period to sixty days, the same limitation period provided for by Article 2287(2) of the Italian Civil Code with respect to partnerships. The Italian full text of the order no. 20101 of 7 October 2015 is available here.
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The Court of first instance of Rome (decision no. 19215 of 28 September 2015, Italian text available here) ruled in a complex case concerning the relationship between a limited liability company and its former director. First of all, the company sued the former director before the Court, claiming his liability. In a second case (the case of the decision at hand), the former director requested the Court to issue a payment order against the company, in order to obtain the amounts allegedly owed to him. The parties did not take into account the arbitration clause stipulated in Article 26 of the Articles of association. This provision notes that “all controversies arising among the quotaholders or among the quotaholders and the company, the directors, liquidators and statutory auditors shall be settled by a sole arbitrator appointed by the President of the Certified Public Accountants Register of the place where the company has its registered office (….).” In the judicial proceedings commenced by the company, the former director objected that the Court did not have jurisdiction, due to the above mentioned arbitration clause. On its turn, the company raised this objection when challenging the payment order issued in favour of the former director.
Did the parties waive their right to arbitrate, by initiating Court proceedings?
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Two recent rulings of the Italian Supreme Court analysed the relationship between arbitration and insolvency proceedings.
The first ruling (decision no. 13089 of 24 June 2015 of the of the I Civil Chamber of the Supreme Court, Italian text available here) established that “claims against a bankrupt party may not be brought before an Arbitral Tribunal. Indeed, the jurisdiction of the arbitrators is in any case prevented due to the prevailing jurisdiction of the Insolvency Courts on such claims.”
The second ruling is more interesting (decision no. 15200 of 21 July 2015 of the Supreme Court sitting en banc, Italian text available here). This judgment focused on the issue of the relationship between arbitration and insolvency when an arbitration procedure is pending abroad and therefore EC Regulation no. 1346 of 29 May 1999 concerning insolvency proceedings applies.
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In its decision no. 10610 of 22 September 2015, the Court of first instance of Milan declared its lack of jurisdiction on the challenge of a resolution of a cooperative company. The Court used a broad construction of the arbitration clause contained in the company’s Articles of association. The Italian full text of the decision is available here.
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If an arbitration clause is stipulated in the company’s Articles of association, disputes between a former shareholder and the company, concerning the repayment of a shareholders’ loan, shall be referred to an Arbitral Tribunal. This is, in a nutshell, the rationale of decision no. 18316 of 17 September 2015 of the Third Civil Chamber of the Court of first instance of Rome (the Italian full text is available here).
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The Supreme Court confirmed the non arbitrability of disputes concerning the challenge of company’s resolutions approving the financial statements (order no. 17950 of 10 September 2015 of the VI Civil Chamber of the Supreme Court, Italian full text available here).
Read more “Once again, on arbitration and companies financial statements”
In its decision no. 17956 of 11 September 2015, the Supreme Court applied for the first time Article 816/septies of the Italian Code of Civil Procedure concerning the arbitrators’ fees. In this decision, the Court examined the scope and conditions of application of the above mentioned provision. The Italian full text of the decision is available here.
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Order no. 17283 of 28 August 2015 of the Italian Supreme Court affirmed the jurisdiction of an Arbitral Tribunal on the challenge of certain shareholders’ resolutions, pursuant to the arbitration clause stipulated in the company’s Articles of associations. The clause at hand only referred to the arbitrators “all disputes which may arise between the company and any shareholder or among the shareholders (…) concerning the company’s activities.” The Italian full text of the order is available here.
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