Bankruptcy receiver’s claims

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.

The case heard by the Supreme Court concerned the order for payment under Article 150 of Italian bankruptcy law issued by the Court with respect to a sum due on the basis of a capital increase resolution passed by the shareholders’ meeting of the bankrupt company (of course, before the declaration of bankruptcy).

The debtor appealed to the payment order and, first of all, it objected to the State Court’s jurisdiction, based on the arbitration clause contained in the company’s articles of association.

The Court rejected the said objection and the debtor appealed the decision to the Italian Supreme Court.

The Italian Supreme Court, in the decision at hand, summarised the rules concerning arbitral jurisdiction over disputes brought by the bankruptcy receiver.

In a nutshell, the arbitration clause always follows the fate of the contract in which it is inserted: if the receiver uses the opt-out (as she is entitled to do) and terminate the contract, she is not bound by the arbitration clause; but if she does not terminate the contract, or exercises rights arising out of the contract, she is bound by the arbitration clause.  It is a clear derogation from the separability doctrine that usually applies under Italian law.

The Supreme Court held that the said rules also apply to articles of association.  Therefore, if the bankruptcy receiver brings a claim to obtain a sum due under the company’s articles of association, she is bound by the arbitration clause possibly contained therein.  An order for payment under Article 150 of Italian bankruptcy law may be issued since the stipulation of an arbitration clause does not prevent the issuance of such order.  However, the debtor is entitled to appeal to the order and to have it set aside based on the arbitration clause.

In this respect, it should be noted a peculiarity of the decision at hand.  Indeed, the Supreme Court did not set aside the order for payment, as it does in similar cases (see for instance Italian Supreme Court sitting en banc, decision No. 22433 of 21 September 2018, Italian text available here; or Italian Supreme Court, II Civil Chamber, decision No. 8960 of 3 May 2016, Italian text available here), nor did it order the return of any sums possibly paid under the said order.  This omission would likely create considerable practical issues that would arguably be addressed by the Arbitral Tribunal appointed pursuant to the arbitration clause contained in the articles of association of the bankrupt company.