I find interesting a recent ruling of the Italian Supreme Court (order no. 1119 of 21 January 2016, VI Civil Chamber, Italian text available here), which dealt with the issue of arbitrability. In fact, the Supreme Court’s reasoning in that case (concerning the extent of disputes which may be referred to common arbitration) differs from the reasoning of Supreme Court in cases of corporate arbitration.
This is the third time in row we deal with the issue of the review on the merits of an arbitration award, rendered pursuant to an arbitration clause stipulated before the 2006 reform of Italian arbitration law, in proceedings commenced after the reform.
The Supreme Court recently ruled on an interesting matter. The case dealt with the consequences of the prohibition to undertake or continue economic transactions with a sovereign State (a State under embargo), with respect to an arbitration clause stipulated in an agreement previously entered into with the embargoed State.
The Italian full text of decision no. 23893 of the Supreme Court sitting en banc of 24 November 2015 is available here.
An arbitration clause stipulates that all the disputes arising out of the agreement may be referred to an Arbitral Tribunal. Is that an optional arbitration, in the sense that the claimant may choose between the Court and the Arbitral Tribunal? Does the jurisdiction exclusively rest with the Arbitral Tribunal? Or is it a void or ineffective arbitration clause?
I already talked about this issue in this article, when analysing an order rendered by the Court of first instance of Milan. Recent rulings of the I Civil Chamber of the Court of Appeal of Bologna (decision no. 1884 of 12 November 2015, Italian text available here) and the VI Civil Chamber of the Supreme Court (decision no. 22039 of 28 October 2015, Italian text available here) have shed light on this issue again.
Decision no. 22008 of 28 October 2015 of the I Civil Chamber of the Supreme Court (Italian text available here) followed the line of cases opposing the so-called "twin-track approach" to corporate arbitration. This judgment ruled that the only arbitration clause that may be stipulated in the Articles of association of an Italian unlisted company is the one pursuant to Article 34 of Legislative Decree no. 5 of 17 January 2003.
Decision no. 22007 of the I Civil Chamber of the Supreme Court (Italian text available here) deals with the issue of the grounds for setting aside an arbitration award delivered in proceedings commenced pursuant to an arbitration clause stipulated before the entry into force of Legislative Decree no. 40 of 2 February 2006.
It is quite usual that, when inserting an arbitration clause in an agreement, a party would like to preserve its right to file with the Court a request for a payment order (which is an ex parte order). The purpose would be to attain a temporarily enforceable payment order, since it would be an effective and fast solution to protect its rights.
Nonetheless, the outcomes of such choice could be different from those expected. The VI Civil Chamber of the Supreme Court, in its order no. 21666 of 23 October 2015 (Italian text available here), analysed the possible consequences.
A recent judgment of the Supreme Court (decision no. 18707 of 22 September 2015, Italian text available here) dealt with a very peculiar case. A party objected that an arbitration clause was unenforceable, since it included an additional preposition (more precisely the preposition “di”, which in Italian means "of").
In this case, the Supreme Court, as well as the Court of first instance, avoided a formalistic excess. The Court did not repeat the old case, referred to by Gaius, in which a party lost the case due to a lexical mistake.
Two recent rulings of the Italian Supreme Court analysed the relationship between arbitration and insolvency proceedings.
The first ruling (decision no. 13089 of 24 June 2015 of the of the I Civil Chamber of the Supreme Court, Italian text available here) established that “claims against a bankrupt party may not be brought before an Arbitral Tribunal. Indeed, the jurisdiction of the arbitrators is in any case prevented due to the prevailing jurisdiction of the Insolvency Courts on such claims.”
The second ruling is more interesting (decision no. 15200 of 21 July 2015 of the Supreme Court sitting en banc, Italian text available here). This judgment focused on the issue of the relationship between arbitration and insolvency when an arbitration procedure is pending abroad and therefore EC Regulation no. 1346 of 29 May 1999 concerning insolvency proceedings applies.
The Supreme Court confirmed the non arbitrability of disputes concerning the challenge of company’s resolutions approving the financial statements (order no. 17950 of 10 September 2015 of the VI Civil Chamber of the Supreme Court, Italian full text available here).