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.
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.
The Court of first instance of Milan in a recent order of 22 December 2015 (Italian text available here) deals with the issue of the relationship between corporate arbitration and the residual jurisdiction of the Courts to issue interim measures. This ruling is in line with the settled case law of the Court of Milan (as well as of several other Italian Courts).
In its decision no. 10610 of 22 September 2015, the Court of first instance of Milan declared its lack of jurisdiction on the challenge of a resolution of a cooperative company. The Court used a broad construction of the arbitration clause contained in the company’s Articles of association. The Italian full text of the decision is available here.
The Court of first instance of Milan went back to analyse the relationship between Courts’ jurisdiction and the jurisdiction of Arbitral Tribunals, with respect to the challenge of the resolution approving the company’s financial statements (in this case, a limited liability company whose Articles of association included an arbitration clause). The Italian full text of the decision (decision no. 9115 of 28 July 2015 of the Court of first instance of Milan) is available here.
The wording of the arbitration clause should be carefully selected, as it constitutes the basis of the jurisdiction of the Arbitral Tribunal. A possible wrong wording will not always be emended, once the dispute has arisen.
Nevertheless, it is commonplace that due attention is not devoted to this clause, either because it is inserted at the last minute in an agreement (known as the “midnight clause” effect), or because the agreement is reached after long negotiation on its commercial terms, underestimating the risk of a possible dispute.