Default arbitration proceedings, or – with a more accurate wording – arbitration proceedings in which a situation occurs corresponding to the situation giving rise to default proceedings in State Courts, is a topic of relevant practical interest.
Italian scholars dealt with that topic, developing three theses. The first thesis holds that the above situation may occur in arbitration proceedings. The second thesis, on the contrary, is that this situation cannot occur. The third thesis, which is the more persuasive, is that it is necessary to identify the law rules concerning default proceedings before State Courts, which are compatible with arbitration proceedings.
On the other hand, Italian case law tends to repeat the doctrine that default proceedings rules do not apply in arbitration proceedings.
In this framework, two recent decisions, both issued in proceedings for the setting aside of Italian domestic awards, are fascinating, as the awards were issued in ‘default’ arbitration proceedings.
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A recent decision rendered by Italian Supreme Court sitting en banc (decision No. 8776 of 30 March 2021, Italian text available here) has clarified – based on hermeneutical criteria, systematic reasons, and constitutional provisions – when the term for commencing setting aside proceedings under Article 828, para. 2, of Italian Code of Civil Procedure starts to run.
Read more “Arbitration award and “long” term to commence setting aside proceedings”
Italian legal system is a civil law system: as a consequence, stare decisis doctrine does not apply in Italy.
However, it is well known that civil and common law systems have become closer to each other during the last decades. On the one hand, from the point of view of common law systems, due to the increasing body of statutory law; on the other hand, from the point of view of civil law systems, because of the increasingly important role played by jurisprudential precedents (on this topic, see the interesting book edited by MacCormick and Summers, Interpreting precedents: a comparative study, also containing papers by the Italian learned scholar Michele Taruffo).
In this perspective, it is worth reading a recent decision of the Italian Supreme Court (Third Civil Chamber, decision No. 24649 of 3 October 2019, Italian text available here). Despite this decision does not concern arbitration matters, I found it very interesting and for this reason, I would like to briefly comment it.
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A recent decision issued by the Italian Supreme Court (Italian Supreme Court, I Civil Chamber, decision No. 24444 of 30 September 2019, Italian text available here) concerns the Arbitral Tribunals’ jurisdiction over claims raised by the bankruptcy receiver.
I consider this topic of great interest: I already examined it in the past (for example in this post) and in a few days it will be discussed during a debate organised by Milan Arbitration Chamber.
The said decision is also interesting because it summarised the general principles of the matter and applied them to a very peculiar case that had not been heard in previous reported judgments. This peculiar case is the claim that the bankruptcy receiver may raise under Article 150 of Italian bankruptcy law currently in force: the receiver is entitled to request the Court to issue an order for payment (under Italian law, an ex parte order) towards the shareholders of the bankrupt company with respect to the overdue capital contribution.
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A recent decision issued by the Italian Supreme Court (decision No. 20078 of 24 July 2019, Italian text available here) addresses the issue of the wording of an arbitration clause contained in general terms and conditions.
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A recent decision issued by Italian Supreme Court (No. 17159 of 26 June 2019, Italian text available here) gives me the chance to make brief comments on the scope of possible review on the merits of arbitration awards by Italian State Courts seised in proceedings for setting them aside.
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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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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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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.
Read more “Arbitration and tort claims”
The Supreme Court sitting en banc unified the case law on the issue of the review on the merits of an award, rendered pursuant to an arbitration clause stipulated before the 2006 reform of Italian arbitration law, in proceedings commenced after that reform (decisions nos. 9284 – Italian text available here – 9285 – Italian text available here – and 9341 – Italian text available here – of 9 May 2016).
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