Some thoughts on the reform of Italian arbitration law

by Roberto Olivaart. 806 It. code civ. proc., art. 813/bis It. code civ. proc., art. 815 It. code civ. proc., art. 818 It. code civ. proc.Posted on No Comments

Much has been written, and much will still be written, about the recent reform of Italian arbitration law. The undeniable merit of this reform is that it brings the Italian system closer to that of other jurisdictions sharing the same civilizational perspective. The changes that have (finally) allowed arbitrators to issue interim and precautionary measures, as well as those concerning the disclosure and disqualification of arbitrators, should indeed be interpreted in this sense. Italy is now among the most advanced jurisdictions, with changes that include the choice of applicable law, allowing parties and arbitrators to apply non-state rules such as lex mercatoria.

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Separability presumption

by Roberto Olivaart. 808 It. code civ. proc., art. 34 decree no. 5/2003Posted on No Comments

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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Objection to State Court’s jurisdiction

by Roberto Olivaart. 808/ter It. code civ. proc., art. 819/ter It. code civ. proc., art. 824/bis It. code civ. proc., art. 829 It. code civ. proc.Posted on No Comments

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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The objection of arbitration

by Roberto Olivaart. 808/ter It. code civ. proc., art. 816/bis It. code civ. proc., art. 824/bis It. code civ. proc.Posted on No Comments

A recent ruling of the Court of first instance of Genoa (decision no. 1325 of 14 April 2016, Italian text available here) deals with the issues of the objection of arbitration and its characterisation and construction.

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Waiver of the right to arbitrate

by Roberto Olivaart. 633 It. code civ. proc., art. 806 It. code civ. proc., art. 808 It. code civ. proc., art. 819/ter It. code civ. proc.Posted on No Comments

The Court of first instance of Rome (decision no. 19215 of 28 September 2015, Italian text available here) ruled in a complex case concerning the relationship between a limited liability company and its former director. First of all, the company sued the former director before the Court, claiming his liability. In a second case (the case of the decision at hand), the former director requested the Court to issue a payment order against the company, in order to obtain the amounts allegedly owed to him. The parties did not take into account the arbitration clause stipulated in Article 26 of the Articles of association. This provision notes that “all controversies arising among the quotaholders or among the quotaholders and the company, the directors, liquidators and statutory auditors shall be settled by a sole arbitrator appointed by the President of the Certified Public Accountants Register of the place where the company has its registered office (….).” In the judicial proceedings commenced by the company, the former director objected that the Court did not have jurisdiction, due to the above mentioned arbitration clause. On its turn, the company raised this objection when challenging the payment order issued in favour of the former director.

Did the parties waive their right to arbitrate, by initiating Court proceedings?

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