Court of Milan Archivi - Arbitration in Italy

Still on parallel paths

by Roberto Olivaart. 806 It. code civ. proc., art. 819/ter It. code civ. proc. 26 February 202526 May 2025No Comments

An arbitration clause in a company’s articles of association allows disputes between shareholders and companies to be referred to arbitration. However, the law places precise limits on this option, one of which is that disputes must not concern non-disposable rights.

Concerning a particular type of dispute, namely disputes concerning the challenge of resolutions approving the annual financial statements, case law has long adopted a two-pronged approach: formal disputes (such as those concerning the irregular convening of the shareholders’ meeting or incorrect minutes) are considered arbitrable. In contrast, substantive disputes (i.e. those concerning the alleged falsity of accounting data or the violation of the principles of truthfulness and correctness) are considered to relate to non-disposable rights and are therefore not arbitrable.

This distinction, although clear in theory, has proved problematic in practice.

What happens, for example, when the same appeal contains both challenge types?

Interim measures and arbitration in Italy after the 2022 reform: initial considerations in light of Article 818 of the Italian Code of Civil Procedure

by Roberto Olivaart. 818 It. code civ. proc. 15 January 202526 May 2025No Comments

The civil procedure reform introduced by Legislative Decree No. 149 of 10 October 2022, in force since 28 February 2023, has also profoundly impacted arbitration law. One of the most significant changes is the possibility for Italian arbitrators to grant interim measures under certain conditions. This long-awaited change modifies a historically rigid structure that has been the subject of frequent criticism.

It is now possible to reflect on the reformed Article 818 of the Italian Code of Civil Procedure in light of its first practical applications, and in particular of an order issued by the Court of Milan on 7 January 2025 (Italian text available here), which is the first judicial decision to deal with the new statutory framework.

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.

Read more “Court’s costs and fees”

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.

Arbitration and tort claims

by Roberto Olivaart. 808/bis It. code civ. proc. 27 February 202027 February 2020No Comments

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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Pre-contractual liability and arbitration

by Roberto Olivaart. 808/bis It. code civ. proc., art. 808/quater It. code civ. proc. 9 January 202010 January 2020No Comments

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.

Counterclaims and objection to Court’s jurisdiction

by Roberto Olivaart. 34 decree no. 5/2003 25 November 201926 November 2019No Comments

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).

Contractual restitutions and arbitration

by Roberto Olivaart. 808/bis It. code civ. proc., art. 808/quater It. code civ. proc. 26 August 201926 August 2019No Comments

A recent decision issued by the Court of first instance of Milan (decision No. 7884 of 22 August 2019, Italian text available here) concerns the relationship between contractual restitutions and arbitration.

Assignment of the arbitration agreement

by Roberto Olivaart. 808 It. code civ. proc. 10 July 201630 August 2016No Comments

Italian Courts set forth peculiar rules concerning the assignment of the arbitration agreement in case of assignment of credit. In this respect, a recent decision issued by the Court of first instance of Milan (Court of first instance of Milan, VII Civil Chamber, decision no. 8379 of 5 July 2016, Italian text available here) is worth a mention.