Dispositions spéciales pour contester les déclarations de compétence ou d'incompétence en matière de convention d'arbitrage en vertu du CPC italien
Comment on I.G. v. I.P, Court of Cassation, no. 12425 , May 9, 2019
Declarations of jurisdiction or of lack of jurisdiction by Courts of First Instance, due to an arbitration agreement may be challenged only through the specific procedure of “Regolamento necessario o facoltativo di competenza” pursuant to Sec. 42 and 43, Italian Civil Procedure Rules.
The Italian Highest Court, Corte di Cassazione, even if required to examine an alleged error in law by the Court of Appeal, may declare ex officio that such a challenge is inadmissible, if the parties have not respected the requirement to go through the "Regolamento di competenza" procedure.
The Court of Appeal has set aside the decision of first instance stating on the contrary that the Court had jurisdiction in spite of an arbitration agreement. The appellant should have filed, rather than an appeal, a Regolamento di Competenza. Not following the required path, the appellant has foreclosed its claim before State Courts.
The Parties after almost 15 years of dispute and three instances of process will have to start again before an Arbitral Tribunal if the claim is not time-barred or may not be asserted on any other ground.
Ruggero Rubino Sammartano
Attorney-at-law admitted to the Milan and Paris Bars, Partner at LawFed BRSA