Default arbitration proceedings

Default arbitration proceedings, or – with a more accurate wording – arbitration proceedings in which a situation occurs corresponding to the situation giving rise to default proceedings in State Courts, is a topic of relevant practical interest.

Italian scholars dealt with that topic, developing three theses.  The first thesis holds that the above situation may occur in arbitration proceedings.  The second thesis, on the contrary, is that this situation cannot occur.  The third thesis, which is the more persuasive, is that it is necessary to identify the law rules concerning default proceedings before State Courts, which are compatible with arbitration proceedings.

On the other hand, Italian case law tends to repeat the doctrine that default proceedings rules do not apply in arbitration proceedings.

In this framework, two recent decisions, both issued in proceedings for the setting aside of Italian domestic awards, are fascinating, as the awards were issued in ‘default’ arbitration proceedings.

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Parallel proceedings

A recent decision issued by the Court of Appeal of Milan (No. 1946 of 23 June 2021, Italian text available here) deals with a topic of great interest and practical relevance. This topic concerns the relationship between arbitration proceedings and parallel proceedings in a Court of law (which in that particular case were criminal proceedings).

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Multiparty arbitration

Both from a historical point of view and in a number of its actual implementations, arbitration is a bilateral dispute resolution mechanism: in other words, it concerns disputes between two parties, a claimant and a respondent.

It is not by chance that, taking account of the above binary structure, the default rule on the appointment of the arbitral tribunal, contained in Article 810 of Italian Code of Civil Procedure provides that each party appoints an arbitrator and that the chair is jointly appointed by the party-appointed arbitrators.

However, disputes submitted to arbitration (in particular, to international arbitration) might have a more complex structure, either because there are more than two parties to the relevant relationship, or because after the execution of the arbitration agreement the parties increase in number: for instance, in case of succession or inheritance when two or more successors or heirs succeed a single party.

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Public policy

A recent decision issued by the Italian Supreme Court (decision No. 1788 of 28 January 2021, Italian text available here) deals with the issue of public policy and its relevance in arbitration matters.

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Corporate arbitration

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.

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Separability presumption

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 proposal for Italian arbitration

In order to access the Recovery Fund, EU member States are required to draft a “National Recovery and Resilience Plan”, consistent with the specific recommendations the Europen Commission addressed them.

In that perspective, Italian government recently made available a preliminary document, headed “Guidelines for the definition of the national recovery and resilience plan” (Italian text available here). A short, forty-page document, with two pages only on Italian judicial system.

In fact, the said guidelines contain vague indications with respect to Italian judicial system and Italian justice: they only claim a number of nebulous, undefined proposed goals (shortening the duration of Court proceedings; reforming codes of civil, criminal and tax proceedings; planning interventions on the Italian judiciary organisation). Nothing else.

Following the publication of these guidelines, Unione Nazionale delle Camere Civili, that is to say, the association representing Italian civil lawyers, published its proposal for an extraordinary plan for civil justice (Italian text available here). It took an admirable initiative, as it triggers (or it could be able to trigger) a broad debate on possible specific, practical measures.

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Arbitration in the time of CoViD-19

CoViD-19 pandemic also has an impact on arbitration proceedings.

The relevant issues were addressed by Italian lawmaker, that enacted provisions which require careful thought for their construction.

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Arbitration and tort claims

A recent decision issued by the Court of Milan (No. 1684 of 24 February 2020, Italian text available here) concerns a very interesting topic, that of Arbitral Tribunals jurisdiction over non-contractual claims related to a contract.

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Liquidated damages, termination and arbitration

Arbitrability of disputes arising out of the termination of a contract: in my opinion, this is a very interesting topic, both for its theoretical and practical consequences.  In fact, I have already addressed this topic, a few months ago (in this post), in relation to contractual restitutions, commenting a decision by the Court of Milan that in my view misapplied the principles governing the matter.

A recent decision issued by the Court of first instance of Rome (No. 1695 of 27 January 2020, Italian text available here) gives me the chance to examine again the topic, from a partially different point of view.

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