Separability of the arbitration clause

by Roberto Olivaart. 808 It. code civ. proc.Posted on No Comments

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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Stare decisis?

by Roberto OlivaWithout categoryPosted on No Comments

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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Bankruptcy receiver’s claims

by Roberto Olivaart. 150 It. bankruptcy lawPosted on No Comments

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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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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Iura novit Arbiter

by Roberto Olivaart. 829 It. code civ. proc.Posted on No Comments

A recent decision issued by the Court of Appeal of Genoa (decision No. 1215 of 27 August 2019, Italian text available here) addresses a topic of great interest: the application of iura novit Curia principle in arbitration proceedings.

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Arbitration and non-contractual claims

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

In the previous post, I examined a decision, regarding arbitration and contractual restitutions, that in my opinion is not correct. On the basis of theoretical principles and in accordance with the case-law of the Supreme Court, this decision is in contrast with the favor arbitrati of Italian law.

I have therefore researched Italian State Courts decision on a very narrow (but interesting) issue: that concerning arbitration of claims under Article 1669 of the Italian Civil Code; that is to say, non-contractual claims connected to a contractual relationship. At the end of my research, I found that some State Courts maintain that Arbitral tribunals have jurisdiction over these claims (Court of Appeal of Catania, decision No. 820 of 10 April 2019, Italian text available here; and Court of Appeal of Bologna, decision No. 2453 of 5 October 2018, Italian text available here). And they do so even though the Italian Supreme Court laid down principles leading to the opposite conclusion (Italian Supreme Court, II Civil Chamber, decision No. 1674 of 3 February 2012, Italian text available here; and Italian Supreme Court, II Civil Chamber, decision No. 4035 of 15 February 2017, Italian text available here) .

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Contractual restitutions and arbitration

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

A recent decision issued by the Court of first instance of Milan (decision No. 7884 of 22 August 2019, Italian text available here) concerns the relationship between contractual restitutions and arbitration.

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Arbitration clause and general terms and conditions

by Roberto Olivaart. 1341 It. civil codePosted on No Comments

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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Challenges to awards

by Roberto Olivaart. 829 It. code civ. proc.Posted on No Comments

The Court of Appeal of Milan issued a very interesting decision in proceedings aimed at setting aside an ICC award (decision No. 3123 of 12 July 2019, Italian text available here).

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General terms and conditions

by Roberto Olivaart. 1341 It. civil codePosted on No Comments

Arbitration clause provided for by general terms and conditions: is it enforceable? The issue was recently addressed in a decision issued by the Court of first instance of Brindisi (decision No. 1077 of 8 July 2019, Italian text available here).

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