Separability of the arbitration clause

The arbitration clause, in Italian jurisdiction as well as in a number of other jurisdictions, does not constitute an ancillary clause of the underlying contract. On the contrary, it constitutes a separate contract with procedural effects. This principle is usually referred to as separability doctrine.

Under Italian law, this doctrine, based on Article 808 of the Italian Code of Civil Procedure (whereby "The validity of the arbitration clause must be evaluated independently of the underlying contract"), is only derogated in bankruptcy matters (under Article 83-bis of Italian bankruptcy law: I have examined the issue in this post).

This doctrine must also be taken into account if an agreement to agree (which is valid and enforceable under Italian law, and it is quite common in construction and conveyancing) is entered into, containing an arbitration clause, and the subsequent agreement does not contain the arbitration clause. I have already examined this topic a few years ago (in this post). Nonetheless, in the light of its relevance, also from a practical point of view, I consider that it is appropriate to examine it again. The opportunity to do so is offered by a recent decision issued by the Court of Appeal of Brescia (decision No. 1474 of 10 October 2019, Italian text available here).

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Bankruptcy receiver’s claims

A recent decision issued by the Italian Supreme Court (Italian Supreme Court, I Civil Chamber, decision No. 24444 of 30 September 2019, Italian text available here) concerns the Arbitral Tribunals’ jurisdiction over claims raised by the bankruptcy receiver.

I consider this topic of great interest: I already examined it in the past (for example in this post) and in a few days it will be discussed during a debate organised by Milan Arbitration Chamber.

The said decision is also interesting because it summarised the general principles of the matter and applied them to a very peculiar case that had not been heard in previous reported judgments.  This peculiar case is the claim that the bankruptcy receiver may raise under Article 150 of Italian bankruptcy law currently in force: the receiver is entitled to request the Court to issue an order for payment (under Italian law, an ex parte order) towards the shareholders of the bankrupt company with respect to the overdue capital contribution.

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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) .

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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.

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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.

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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.

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Corporate arbitration: the doctrine is (finally) right, its application is wrong

Corporate arbitration is a major topic for Italian arbitration practitioners.  The Italian Supreme Court developed a doctrine and laid down principles not entirely right.  Some lower Courts tried to take a more appropriate approach, but to no avail (I discussed this issue, for instance, in this post).

A recent decision issued by the Court of first instance of Bologna (No. 1378 of 13 June 2019, Italian text availabe here) ostensibly applied the right doctrine (or the doctrine I deem right); nonetheless, it came to the wrong conclusion.

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Wording of the arbitration clause and setting aside of the award

The wording of the arbitration clause is of utmost importance: this is a subject I have already dealt with (for instance in this post). A recent decision of the Court of Appeal of Milan (No. 2528 of 10 June 2019, Italian text available here) confirms this importance also with respect to the possible recourse for setting aside the award.

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Corporate arbitration and insolvency proceedings

After a year-long pause, a new article is available on Arbitration in Italy!  It concerns a matter already analysed in the past: the relationship between arbitration and insolvency proceedings and, in particular, between arbitration and bankruptcy proceedings (please see here and here, as well as my article on YAR – Young Arbitration Review).

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