Arbitration clause Archivi - Arbitration in Italy

Breach to the arbitral agreement

by Roberto Olivaart. 806 It. code civ. proc. 28 June 202328 June 2023No Comments

Commercial arbitration practitioners sometimes face problems arising from the conduct of a party that, recalcitrant to see the dispute decided by the arbitrators as agreed, engages in conduct with the apparent intent to prevent or hinder and slow down, the arbitral proceedings.

The leading arbitral institutions are also aware of this and have included in their rules the admonition represented by the express provision that the parties must conduct themselves in good faith and fair dealing.

The subject has not, however, found particular attention in Italy. For this reason, it seems appropriate to address it.

Parallel paths

by Roberto Olivaart. 819/ter It. code civ. proc. 10 August 202210 August 2022No Comments

As far as the relationship between arbitration and Court proceedings is concerned, Italian law applies the s.c. parallel paths doctrine. This doctrine is laid down by Article 819-ter of the Italian Code of Civil Procedure, whereby “the jurisdiction of arbitrators is not excluded by the fact that the same case is pending before the State Courts, nor by the fact that a related case is pending before the State Courts”.

This principle applies in several cases, some of which relate to corporate matters. For this reason, a recent decision of the Court of Milan is of particular interest (Court of first instance of Milan, 12 July 2022, No. 6095, Italian text available here), as the judge failed to apply the said principle.

Court’s costs and fees

by Roberto Olivaart. 806 It. code civ. proc. 28 July 202210 August 2022No Comments

The Court of Appeal of Milan and the Court of first instance of Milan recently issued two decisions on the issue of Court’s and attorney’s fees in case an objection to the Court’s jurisdiction is granted, as the parties entered into an arbitration agreement.

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Extended effects or separability doctrine?

by Roberto Olivaart. 34 decree no. 5/2003, art. 808 It. code civ. proc. 25 February 202126 February 2021No Comments

Two virtually simultaneous decisions, issued by two different lower Courts, reached opposite conclusions (Court of Catania, decision No. 1020 of 13 March 2020, Italian text available here; and Court of Milan, decision No. 2091 of 11 March 2020, Italian text available here). The legal grounds of both these decisions are indicated under Article 118, para. 1, of the Implementing Provisions of Italian Code of Civil Procedure. In other words, they merely refer to judicial precedents.

Arbitration and consortia

by Riccardo Robuschiart. 34 decree no. 5/2003 10 February 202112 February 2021No Comments

The recent publication of two decisions issued by different national courts of first instance (Court of Civitavecchia, decision No. 2 of 7 January 2021, Italian text available here; and Court of Brindisi, decision No. 22 of 5 January 2021, Italian text available here) offers the opportunity to examine the ‘state of the art’ regarding the applicability of the corporate arbitration law to consortia (consorzi).

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Arbitration and choice of forum clauses

by Luca Giusquiamiart. 806 It. code civ. proc., art. 808/quater It. code civ. proc. 30 December 202030 December 2020No Comments

The Court of first instance of Milan addressed in its decision No. 7692 of 26 November 2020 (Italian text available here) the issue arising out of the coexistence, within the same contract, of an arbitration clause and a choice of forum clause.

Corporate arbitration

by Roberto Olivaart. 34 decree no. 5/2003 9 November 202012 November 2020No Comments

Italian law provisions on corporate arbitration (enacted by legislative decree no. 5 of 17 January 2003) entails a number of interpretative issues, possibly the reason for the limited recourse to arbitration in corporate matters.

Separability presumption

by Roberto Olivaart. 34 decree no. 5/2003, art. 808 It. code civ. proc. 29 September 202019 October 2020No Comments

Separability presumption is universally applied, as the relevant doctrine spread all over the world during the first half of XX century.

In the words of Italian lawmakers, “The validity of the arbitration clause must be evaluated independently of the underlying contract” (Article 808, para. 2, of the Italian Code of Civil Procedure).

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A never signed arbitration clause

by Roberto Olivaart. 817 It. code civ. proc. 11 September 202014 September 2020No Comments

An Arbitral Tribunal seated in Padua recently dealt with some issues concerning its jurisdiction. The award was delivered on 21 January 2020 and its Italian text is available here.

The dispute heard by the Tribunal referred to an alleged relationship between a bank and a limited company evidenced by a framework agreement and an interest rate swap contract.

The claimant’s case was that the said contractual documents were never signed by its legal representative and that the signature on them was forged. As a consequence, the claimant requested the respondent to return the amounts the latter received under the terms of the said contracts.

An interesting point is that the claimant commenced the arbitration proceedings provided for by the arbitration clause contained in the contracts that, in its own case, it never entered into.

Another interesting point is that, on the basis of the opinion of a Tribunal-appointed expert, the claimant’s signature on the contracts actually proved to be forged. The respondent did not raise any objection after the filing of the expert opinion. Nonetheless, when the Tribunal requested the parties to express their views on the matter, the respondent objected to the Tribunal’s jurisdiction, lacking an enforceable (and even existing) arbitration clause.

International corporate arbitration

by Roberto Olivaart. 34 decree no. 5/2003, art. 35 decree no. 5/2003, art. 829 It. code civ. proc., art. 840 It. code civ. proc. 7 September 202018 November 2020No Comments

International corporate arbitration under Italian law is a very interesting topic that nonetheless is virtually neglected by Italian scholars. Besides, to date there are no reported decisions.

First of all, a clarification of terminology is due: in this context, ‘international corporate arbitration’ means an abroad seated arbitration concerning a dispute falling within the scope of Article 34 of Italian Legislative Decree No. 5 of 17 January 2003, n. 5, which sets forth particular rules concerning arbitration in corporate matters.

In practice, possible cases of international commercial arbitration are not uncommon. For instance, an Italian incorporated company could represent the investment vehicle of a foreign entity. And that foreign entity could wish that corporate disputes (against an Italian co-investor, or the company’s directors) are referred to an abroad seated arbitration.

A few scholars addressed the relevant issue, which is also addressed by a recent decision issued by the Court of Appeal of Genoa (decision No. 649 of 9 July 2020, Italian text available here).