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).
In certain cases, Italian law requires the joinder of certain parties to the proceedings. For instance, as a general rule, the action aimed at setting aside a contract requires the joinder of all parties thereof.
The topic of such compulsory joinder in arbitration proceedings is partly governed by statutory law (Articles 816-quater and 816-quinquies of the Italian Code of Civil Procedure); nonetheless, its implementation gives rise to several turmoils (as it was noted by a learned author).
What happens if the party whose joinder is required by law is not joined to the proceedings? A possible answer to that question is provided by the Court of Appeal of Campobasso, in its recent ruling (No. 367 of November 7, 2019, Italian text available here).
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.
A contract contains an arbitration clause whereby the parties’ disputes are referred to arbitration. Notwithstanding the said clause, a party sues the other party in State Court. The respondent objects to the Court’s jurisdiction, on the basis of the arbitration clause, but the Court issues a wrong decision, rejects the objection and upholds its jurisdiction. In such a case, what is the appellate Court that the respondent should seize to have the first decision overturned?
Two recent decisions, issued a day apart by two different Courts of Appeal (decision of the Court of Appeal of Catanzaro No. 1782 of 19 September 2019, Italian text available here; and decision of the Court of Appeal of Potenza No. 636 of 20 September 2019, Italian text available here), offer two different answers to the above question: the Court of Appeal of Catanzaro holds that the appeal has to be submitted to the Court of Appeal, while the Court of Appeal of Potenza states that it has to be filed with the Italian Supreme Court. Both decisions are correct because they concern two different kinds of arbitration proceedings.
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) .
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.
The Milan Chamber of Arbitration published its new arbitration rules. These new rules apply to arbitration proceedings commenced after 1st March 2019 unless the parties have agreed, under Article 832 of the Italian code of civil procedure, that the arbitration proceedings shall be subject to the arbitration rules in force at the time of the stipulation of the arbitration clause (however, in this case, the Arbitration Chamber may refuse to manage the proceedings).
The new rules are available here.
A recent decision issued by the Court of Cosenza (no. 1171 of 4 June 2019, Italian text available here) addresses the topic of the scope of corporate arbitration clauses.
A recent decision delivered by the Court of Appeal of Brescia (decision no. 71 of 19 January 2017, Italian text available here) lets us briefly examine Italian rules on setting aside of arbitral awards and, in particular, the grounds for setting aside under Article 829 of Italian Code of Civil Procedure.
A recent decision issued by the Court of first instance of Rome (no. 24195 of 28 December 2016, Italian text available here) gives us the chance to examine an interesting topic: that concerning the relationship between arbitration and order for payment.