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Separability of the arbitration clause

The arbitration clause, in Italian jurisdiction as well as in a number of other jurisdictions, does not constitute an ancillary clause of the underlying contract. On the contrary, it constitutes a separate contract with procedural effects. This principle is usually referred to as separability doctrine.

Under Italian law, this doctrine, based on Article 808 of the Italian Code of Civil Procedure (whereby "The validity of the arbitration clause must be evaluated independently of the underlying contract"), is only derogated in bankruptcy matters (under Article 83-bis of Italian bankruptcy law: I have examined the issue in this post).

This doctrine must also be taken into account if an agreement to agree (which is valid and enforceable under Italian law, and it is quite common in construction and conveyancing) is entered into, containing an arbitration clause, and the subsequent agreement does not contain the arbitration clause. I have already examined this topic a few years ago (in this post). Nonetheless, in the light of its relevance, also from a practical point of view, I consider that it is appropriate to examine it again. The opportunity to do so is offered by a recent decision issued by the Court of Appeal of Brescia (decision No. 1474 of 10 October 2019, Italian text available here).

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Objection to State Court’s jurisdiction

A contract contains an arbitration clause whereby the parties’ disputes are referred to arbitration. Notwithstanding the said clause, a party sues the other party in State Court.  The respondent objects to the Court’s jurisdiction, on the basis of the arbitration clause, but the Court issues a wrong decision, rejects the objection and upholds its jurisdiction.  In such a case, what is the appellate Court that the respondent should seize to have the first decision overturned?

Two recent decisions, issued a day apart by two different Courts of Appeal (decision of the Court of Appeal of Catanzaro No. 1782 of 19 September 2019, Italian text available here; and decision of the Court of Appeal of Potenza No. 636 of 20 September 2019, Italian text available here), offer two different answers to the above question: the Court of Appeal of Catanzaro holds that the appeal has to be submitted to the Court of Appeal, while the Court of Appeal of Potenza states that it has to be filed with the Italian Supreme Court. Both decisions are correct because they concern two different kinds of arbitration proceedings.

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Assignment of credit and arbitration clause

The Italian Supreme Court has recently upheld its doctrine on the circulation of the arbitration clause in case of credit assignment (Italian Supreme Court, First Civil Chamber, decision No. 16127 of 14 June 2019, Italian text available here).

I have already examined this topic (in this post); nonetheless, in the light of its relevance, I believe that it is worth re-examining it.

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New arbitration rules of Milan Chamber of Arbitration

The Milan Chamber of Arbitration published its new arbitration rules.  These new rules apply to arbitration proceedings commenced after 1st March 2019 unless the parties have agreed, under Article 832 of the Italian code of civil procedure, that the arbitration proceedings shall be subject to the arbitration rules in force at the time of the stipulation of the arbitration clause (however, in this case, the Arbitration Chamber may refuse to manage the proceedings).

The new rules are available here.

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Setting aside of arbitral awards

A recent decision delivered by the Court of Appeal of Brescia (decision no. 71 of 19 January 2017, Italian text available here) lets us briefly examine Italian rules on setting aside of arbitral awards and, in particular, the grounds for setting aside under Article 829 of Italian Code of Civil Procedure.

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Setting aside of a partial award

If the Arbitral Tribunal issued a partial award on jurisdiction, should the parties immediately request its setting aside or may they await the issuance of the final award? A recent decision of the Italian Supreme Court sitting en banc (decision no. 23463 of 18 November 2016, Italian text available here) maintains that the request for setting aside of such a partial award shall be filed together with the request for setting aside of the final award.

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Arbitration and tort claims

Italian Arbitration Law, as amended in 2006, expressly provides for the parties to enter into an arbitration clause concerning their possible tort disputes.  Indeed, Article 808(b) of Italian Code of Civil Procedure, as enacted by 2006 reform, sets forth that "The parties may establish, in a specific agreement, that future disputes relating to one or more specific non-contractual relations be decided by arbitrators (…)."

There are only a few reported cases concerning Article 808(b) of Italian Code of Civil Procedure, and therefore it appears that that tool is rarely used.  Nonetheless, it could be very helpful: for instance, in the case of related actions, it could prevent the doctrine of "parallel paths" from applying.

A recent decision of the Italian Supreme Court (Supreme Court, VI Civil Chamber, decision no. 20673 of 13 October 2016, Italian text available here) deals with that matter. As far as I know, it is the first decision issued by the Italian Supreme Court concerning the construction of Article 808(b) of Italian Code of Civil Procedure.

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Corporate disputes

Corporate disputes are capable of arbitration, under Italian law, if they concern negotiable rights (Art. 34(1) of Legislative Decree no. 5 of 17 January 2003). Therefore, the question is: what does "negotiable rights" mean?

The Court of first instance of Florence established an interesting doctrine of arbitrability of corporate disputes, which is enunciated in a recent decision (no. 2906 of 8 September 2016, Italian text available here).

I already examined that doctrine (in this post); moreover, the issue of arbitrability of corporate disputes has often been  mentioned on this blog (for instance, in this post, in this one and this one too).

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Corporate arbitration and interim measures

A recent decision of the Court of first instance of Catania (decision no. 4041 of 19 July 2016, Italian text available here) focused on the relationship between corporate arbitration and interim measures and it is particularly interesting for its potential impact.

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