Arbitration and consortia

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

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.

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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 never signed arbitration clause

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.

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CAM simplified arbitration

The Arbitration Rules of Milan Arbitration Chamber, which came into force a year ago (as discussed here), has recently been integrated.  The new provisions, applying from 1st July 2020, establish a simplified arbitration procedure. 

The said new provisions are contained in Annex D to the arbitration rules, available here (for the time being, only in Italian) 

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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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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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