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Pre-contractual liability and arbitration

Pre-contractual liability, under Italian law, is a form of tort liability.  In a nutshell (and with some degree of approximation), it concerns cases similar to those provided for by English Misrepresentation Act 1967, as well as other cases falling outside the scope of the said Act involving a breach of the duty to act in good faith during the negotiations aimed at entering into a contract.

In this respect, a topic of great interest is that of the enforceability of the arbitration agreement possibly contained in the contract in case of pre-contractual claims (or tort claims related to the negotiation, the execution and the fulfilment of the contract).

I have already written some posts concerning that topic (available, for example, here and here) and an article of mine will be published soon in the Italian law review Danno e Responsabilità.

A recent decision issued by the Court of first instance of Milan (No. 58 of 8 January 2020, Italian text available here) addressed the same topic.  In my opinion, such decision is really impressive, both for its detailed and thorough grounds and for the conclusions it reached.

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Counterclaims and objection to Court’s jurisdiction

The Court of first instance of Milan issued an interesting decision addressing the relationship between counterclaims and objection to the Court’s jurisdiction raised by the counter-claimant (decision No. 10728 of 21 November 2019, Italian text available here).

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"Irrituale" arbitration in corporate matters

The Court of first instance of Salerno recently heard a complex corporate case and its decision (No. 3296 of 21 October 2019, Italian text available here), together with the decision issued by the Court of Appeal of Salerno with reference to the same dispute (No. 1311 of 14 September 2018, Italian text available here), provides the perfect opportunity to carry out a brief analysis of the issues concerning "irrituale" arbitration in corporate matters, that is to say the relationship between the "irrituale" arbitration as governed by Italian Code of Civil Procedure and arbitration in corporate matters under Italian Legislative Decree No. 5 of 17 January 2003 .

As a matter of fact, Italian law provides for two different kinds of arbitration proceedings: on the one hand, "regular" ("rituale") arbitration, resulting in an enforceable award; on the other hand, "irrituale" arbitration, whose award has the effect of a binding contract.

In addition, "irrituale" arbitration has certain other peculiarities: concerning, for instance, the recourse for its setting aside.

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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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