Iura novit Arbiter

A recent decision issued by the Court of Appeal of Genoa (decision No. 1215 of 27 August 2019, Italian text available here) addresses a topic of great interest: the application of iura novit Curia principle in arbitration proceedings.

Continue reading "Iura novit Arbiter"

Arbitration and non-contractual claims

In the previous post, I examined a decision, regarding arbitration and contractual restitutions, that in my opinion is not correct. On the basis of theoretical principles and in accordance with the case-law of the Supreme Court, this decision is in contrast with the favor arbitrati of Italian law.

I have therefore researched Italian State Courts decision on a very narrow (but interesting) issue: that concerning arbitration of claims under Article 1669 of the Italian Civil Code; that is to say, non-contractual claims connected to a contractual relationship. At the end of my research, I found that some State Courts maintain that Arbitral tribunals have jurisdiction over these claims (Court of Appeal of Catania, decision No. 820 of 10 April 2019, Italian text available here; and Court of Appeal of Bologna, decision No. 2453 of 5 October 2018, Italian text available here). And they do so even though the Italian Supreme Court laid down principles leading to the opposite conclusion (Italian Supreme Court, II Civil Chamber, decision No. 1674 of 3 February 2012, Italian text available here; and Italian Supreme Court, II Civil Chamber, decision No. 4035 of 15 February 2017, Italian text available here) .

Continue reading "Arbitration and non-contractual claims"

Contractual restitutions and arbitration

A recent decision issued by the Court of first instance of Milan (decision No. 7884 of 22 August 2019, Italian text available here) concerns the relationship between contractual restitutions and arbitration.

Continue reading "Contractual restitutions and arbitration"

Arbitration clause and general terms and conditions

A recent decision issued by the Italian Supreme Court (decision No. 20078 of 24 July 2019, Italian text available here) addresses the issue of the wording of an arbitration clause contained in general terms and conditions.

Continue reading "Arbitration clause and general terms and conditions"

General terms and conditions

Arbitration clause provided for by general terms and conditions: is it enforceable? The issue was recently addressed in a decision issued by the Court of first instance of Brindisi (decision No. 1077 of 8 July 2019, Italian text available here).

Continue reading "General terms and conditions"

Distinguishing Achmea

Two ICSID Arbitral Tribunals, on the basis of similar reasons, reached the same conclusion: Achmea decision (available here) does not affect their jurisdiction.

In a nutshell, this is the principle laid down in 9Ren v. Spain (final award of 31 May 2019 available here) and in Rockhopper v. Italy (partial award of 26 June 2019 available here).

Continue reading "Distinguishing Achmea"

Review on the merits

A recent decision issued by Italian Supreme Court (No. 17159 of 26 June 2019, Italian text available here) gives me the chance to make brief comments on the scope of possible review on the merits of arbitration awards by Italian State Courts seised in proceedings for setting them aside.

Continue reading "Review on the merits"

Dispute Review Board in Italian Public Procurement

The so-called "Decree Unblock-Construction" ("Decreto Sblocca-Cantieri") (decree No. 32 of 18 April 2019, converted into law No. 55 of 14 June 2019) reintroduced, in the Italian system of public procurement, the advisory technical committee ("Comitato Consultivo Tecnico"), already provided for by Article 207 of legislative decree No. 50 of 18 April 2016 (repealed by legislative decree No. 56 of 19 April 2017).

Continue reading "Dispute Review Board in Italian Public Procurement"

Assignment of credit and arbitration clause

The Italian Supreme Court has recently upheld its doctrine on the circulation of the arbitration clause in case of credit assignment (Italian Supreme Court, First Civil Chamber, decision No. 16127 of 14 June 2019, Italian text available here).

I have already examined this topic (in this post); nonetheless, in the light of its relevance, I believe that it is worth re-examining it.

Continue reading "Assignment of credit and arbitration clause"