Sanctions and arbitrability

The sanctions adopted against certain Russian entities and individuals after the invasion of Ukraine by the Russian Federation might raise an issue of arbitrability of disputes between sanctioned entities and third parties.

This is not a new subject for practitioners of international arbitration, as it has been addressed in the past when the international community adopted sanctions, for example, against Iraq or Iran. The current sanctions are somehow different (for example, they are not adopted by the United Nations) and are more similar to those adopted against the same Russian Federation following the annexation of Crimea.

The issue now requires further attention, either because of the scope of the new sanctions or because of the relevance in the international trade of several of the sanctioned entities.

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Corporate disputes

Corporate disputes are capable of arbitration, under Italian law, if they concern negotiable rights (Art. 34(1) of Legislative Decree no. 5 of 17 January 2003). Therefore, the question is: what does “negotiable rights” mean?

The Court of first instance of Florence established an interesting doctrine of arbitrability of corporate disputes, which is enunciated in a recent decision (no. 2906 of 8 September 2016, Italian text available here).

I already examined that doctrine (in this post); moreover, the issue of arbitrability of corporate disputes has often been  mentioned on this blog (for instance, in this post, in this one and this one too).

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Corporate arbitration: and yet it moves!

A recent decision by the Court of first instance of Florence (decision no. 1129 of 21 March 2016 of III Civil Chamber of the Court of first instance of Florence, Italian text available here) re-opens the debate on the topic of arbitrability of corporate disputes, and it is particularly notable for the clarity of its reasoning.

We previously talked about this topic on several occasions (for instance, on this post, on this one and this one as well).

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Arbitration and directors’ remuneration

The Supreme Court addressed the arbitrability of disputes between companies and directors concerning the directors’ remuneration (decision no. 2759 of 11 February 2016 of the I Civil Chamber, Italian text available here).

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Arbitrability of disputes

I find interesting a recent ruling of the Italian Supreme Court (order no. 1119 of 21 January 2016, VI Civil Chamber, Italian text available here), which dealt with the issue of arbitrability. In fact, the Supreme Court’s reasoning in that case (concerning the extent of disputes which may be referred to common arbitration) differs from the reasoning of¬†Supreme Court in cases of corporate arbitration.

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Arbitrability of corporate disputes

A recent ruling of the Court of first instance of Rome (decision no. 25936 of 30 December 2015, Italian text available here) brings up the issue of the arbitrability of corporate disputes, in particular those relating to the challenge of resolutions of company’s general¬†meetings.

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Arbitration and embargo

The Supreme Court recently ruled on an interesting matter. The case dealt with the consequences of the prohibition to undertake or continue economic transactions with a sovereign State (a State under embargo), with respect to an arbitration clause stipulated in an agreement previously entered into with the embargoed State.

The Italian full text of decision no. 23893 of the Supreme Court sitting en banc of 24 November 2015 is available here.

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Waiver of the right to arbitrate

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 ‚Äúall 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¬†(‚Ķ.).‚ÄĚ 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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Once again, on arbitration and companies financial statements

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).

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