The United Sections of the Court of Cassation recently addressed the question of jurisdictional preventive regulations and seized the opportunity to reaffirm the jurisdictional nature of arbitration proceedings. The court affirmed the admissibility of the procedure provided for in Article 41 of the Code of Civil Procedure where an international arbitration clause exists.(1)

Facts

The claimants undertook a jurisdictional preventive action as provided for in Article 41 of the Code of Civil Procedure to ask the United Sections of the Court of Cassation to declare the Italian judge's lack of jurisdiction with regard to a notice of objection against an injunction served by an ordered company, given the international arbitration clause contained in the agreement between the parties.

The claimant's action was based on:

  • the applicability of the international arbitration clause contained in the agreement between the parties, which provided that:

"all claims that arise from this Agreement will be solved according to ICC Rules of Conciliation and Arbitration by one or three Arbitrators according to the abovementioned rules, whose decision will be binding and final. The arbitration will take place in Brussels, Belgium, and will be conducted in English"; and

  • the similarity of this arbitration clause to a waiver of jurisdiction in favour of an international court according to Articles 4 and 11 of Law 218/1995.

The defendant affirmed the inapplicability of the arbitration clause, arguing that:

  • the agreement expressly stated that "interim or conservatory proceedings" were excluded from arbitration and, as a result, the preliminary injunction and notice of objection against the injunction must be considered as interim proceedings; and
  • the arbitration clause was invalid according to Article 1341(2) of the Civil Code, as the parties had not approved it in writing.

Decision

The Supreme Court affirmed the ordinary judge's lack of jurisdiction and held that the dispute should be referred to international arbitration for the following reasons.

First, the court underlined that the proceedings for which the claimant had commenced the jurisdictional preventive action was a notice of objection against an injunction (ie, an ordinary proceeding and not an interim proceeding such as the preliminary injunction itself). Therefore, it followed that the exclusion of "interim or conservatory proceedings" from the arbitration proceedings was irrelevant. Further, the court affirmed obiter dictum that, with regard to international arbitration, the distinction between ritual and non-ritual arbitration was irrelevant, as the effects of international arbitration are always comparable to ritual arbitration.(2)

Second, the court underlined the lack of proof regarding the claim that the content of the agreement had been established on the basis of standard form contracts, as the parties had executed the agreement considering a single relationship and not an undetermined number of relationships. As a result, Article 1341(2) of the Civil Code was not applicable.

In light of the above, the court found that the ordinary judge had lacked jurisdiction, as the dispute should have been referred to international arbitration. The preliminary injunction was therefore annulled.

Comment

The United Sections of the Court of Cassation has affirmed the principle according to which an international arbitration clause can invalidate the jurisdiction of the ordinary Italian courts regarding a notice of objection against a preliminary injunction.

The common opinion is that an arbitration clause does not exclude the parties from requesting an injunction from an ordinary judge or the issue of preliminary injunctions, as an objection to ordinary jurisdiction can be opposed only by the parties and not by the judge.

However, notice of objection proceedings against a preliminary injunction establish an ordinary proceeding with full knowledge of the facts; consequently, if a lack of jurisdiction is challenged, the judge must revoke the preliminary injunction and refer the dispute to arbitration after verifying the existence of an international arbitration clause.(3)

This decision confirms the Italian legal system's favour with regard to national and international arbitration.

For further information on this topic please contact Costanza Mariconda at Mariconda e Associati by telephone (+39 02 795 212) or email (costanza.mariconda@studiomariconda.com). The Mariconda e Associati website can be accessed at www.studiomariconda.com.

Endnotes

(1) United Sections of the Court of Cassation, Decision 21550/2017.

(2) United Sections of the Court of Cassation, Decision 10800/2015.

(3) See also Cass civ, 5265/2011.

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