Liquidated damages, termination and arbitration

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

Arbitrability of disputes arising out of the termination of a contract: in my opinion, this is a very interesting topic, both for its theoretical and practical consequences.  In fact, I have already addressed this topic, a few months ago (in this post), in relation to contractual restitutions, commenting a decision by the Court of Milan that in my view misapplied the principles governing the matter.

A recent decision issued by the Court of first instance of Rome (No. 1695 of 27 January 2020, Italian text available here) gives me the chance to examine again the topic, from a partially different point of view.

Read more “Liquidated damages, termination and arbitration”

Arbitration and order for payment

by Roberto Olivaart. 633 It. code civ. proc., art. 806 It. code civ. proc.Posted on 2 Comments

A recent decision issued by the Court of first instance of Rome (no. 24195 of 28 December 2016, Italian text available here) gives us the chance to examine an interesting topic: that concerning the relationship between arbitration and order for payment.

Read more “Arbitration and order for payment”

Once again, on the relationship between arbitral and judicial proceedings

by Roberto Olivaart. 295 It. code civ. proc., art. 7 law no. 218/1995, art. 819/ter 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 Rome (decision no. 4216 of 1 March 2016 of the III Civil Chamber of the Court of first instance of Rome, Italian text available here) goes trough the issue of the relationship between arbitral and judicial proceedings. In particular, the ruling considers whether it is possible to order the stay of proceedings pending in Court, while awaiting the decision in other proceedings pending before an Arbitral Tribunal. This is an issue I already analysed on this post.

Read more “Once again, on the relationship between arbitral and judicial proceedings”

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?

Read more “Waiver of the right to arbitrate”

Arbitration and shareholders’ loan

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

If an arbitration clause is stipulated in the company’s Articles of association, disputes between a former shareholder and the company, concerning the repayment of a shareholders’ loan, shall be referred to an Arbitral Tribunal. This is, in a nutshell, the rationale of decision no. 18316 of 17 September 2015 of the Third Civil Chamber of the Court of first instance of Rome (the Italian full text is available here).

Read more “Arbitration and shareholders’ loan”