The Court of Milan reaffirms, in a recent decision (No. 8411 of 26 October 2022, Italian text available here), the broad applicability of the arbitration clauses contained in the Articles of Association, also with respect to the challenge to the shareholders’ meeting resolutions, with the sole exception of so-called irremediable nullity.
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.
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.
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).
Mountains of papers have been written, countless rhetorical statements and a handful of enlightening and careful considerations were spent to describe 2020 and how tragic and particular that year was.
I don’t intend to add my voice to that chorus. However, I would like to focus on two aspects, which in my opinion deserve the attention of the readers of this law journal.
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 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).
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).
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).