The Court of Appeal, Brescia, has been seised in Mi.Gi1 of a dispute on the validity of an arbitration clause in a construction contract which had been challenged by the Defendant due to the absence of the required specific acceptance of that clause.

Background

An arbitration clause in a standard set of conditions of contract is treated, under Italian law, as a burdensome clause. As such, for its validity, it is requested that it be not only specifically referred to when incorporating such standard conditions, but also that it be specifically accepted by the parties.

The specific acceptance is expressed by a reference to the burdensome clause or clauses, after the signature of the contract, and by appending a second signature after such reference.

The Court of Appeal has held that, even if the standard terms had been prepared by one party, they had been submitted by it to the other contracting party, which was free to accept them or to request amendments to them, or to refuse them and then that it has been the result of contacts between the parties, and not of a unilateral imposition.

In its reasons, the Court has held that construction contracts, as well as subcontracts, are not normally - under the rule of id quod plerumque accidit - compatible with a standard contract since, due precisely to their nature, they require a review of the factual situation related to the works to be executed, with consequent negotiation as to the various aspects of the contract.

Decision

The Court has concluded that, the contract being the result of contacts between the parties, it had to be presumed that such contacts had covered also the arbitration clause, which is to be treated as negotiated and then valid.

This judgment is not in line with the majority of precedents. It seems to take for granted that the contacts between the parties, in order to enter into the contract, had also involved the arbitration clause, while it is generally held that evidence of specific negotiation of the arbitration clause is also required.