Mariconda e Associati Studio Legale
Mariconda e Associati is a boutique law firm, established as a professional association in December 2013, specialising in the resolution of disputes before judicial courts and arbitral bodies. The association was established by Avv. Prof. Vincenzo Mariconda, who until the end of the 1980s was involved in the largest national disputes and arbitrations regarding corporate and contractual matters, and by his closest associates.Show more
Arbitration & ADR
The Supreme Court of Cassation recently found that parties alleging nullity of an arbitral award for the late delivery of the decision must notify the other parties and arbitrators before the award's deliberation pursuant to the Code of Civil Procedure. The decision strongly reaffirms a general principle of primary importance regarding arbitration under the code.
The Supreme Court of Cassation recently examined the relationship between real estate leasing agreements and mandatory mediation in banking and finance agreements. Basing its decision on Article 5 of Legislative Decree 28/2010, which provides that mandatory mediation must be attempted in banking and finance agreements, the court found that in legal proceedings regarding real estate leasing agreements, it is not mandatory to attempt mediation.
In a recent decision the Supreme Court of Cassation – while addressing a question relating to the ritual or non-ritual nature of an arbitration clause – seized the opportunity to reaffirm that the decision of a judge on the validity and effectiveness of an arbitration clause for non-ritual arbitration is not appealable before the Supreme Court of Cassation on the grounds of lack of jurisdiction.
A recent Supreme Court of Cassation decision concerned a tribunal president's rejection of a motion to recuse an arbitrator appointed by the counterparty to a dispute and appoint a third arbitrator. The court found that under Article 815(3) of the Code of Civil Procedure, the decision of an arbitral tribunal president regarding a request for the recusal of an arbitrator cannot be appealed.
The Court of Cassation recently addressed both whether disputes concerning the withdrawal of a shareholder from a company may be submitted to arbitration and the validity of an arbitration clause regarding a specific dispute between a shareholder and a company where the clause does not assign the right to appoint the arbitrator to a third party. The court affirmed that, as a shareholder's right of withdrawal concerns economic disposable rights, disputes in this regard may be submitted to arbitration.
The United Sections of the Court of Cassation recently addressed the matter of jurisdictional preventive regulations and seized the opportunity to reaffirm the jurisdictional nature of arbitration proceedings. The court 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 Court of Cassation recently ruled on the conferment of a company dispute to the jurisdiction of an arbitral tribunal based on the arbitration clause contained in the company's articles of association. The tribunal had accepted the exception raised by the counterparties concerning its lack of jurisdiction, but the claimant appealed this decision before the Court of Cassation.
A recent Supreme Court of Cassation decision addressed the invalidity of arbitration clauses that do not agree with Decree-Law 5/2003, which concerns judicial procedures for corporate matters. The court found that in arbitration proceedings concerning disputes between business partners, the clause referring to the appointment of arbitrators assigned to the parties will be void even if stipulated before Decree-Law 5/2003 came into force.
The United Sections of the Supreme Court of Cassation recently addressed a case concerning a cooperative that had been sued before an arbitral tribunal by three partners who alleged that their exclusion, which the company had approved, had been illegitimate. The court found that the 30-day forfeiture term to appeal a decision excluding a partner of a cooperative, as provided for by the Civil Code, is applicable even in the presence of an arbitration clause in the cooperative's articles of association.
A recent Supreme Court of Cassation decision examined the long-standing question of how to interpret Article 827(3) of the Code of Civil Procedure, which provides that an arbitral award which partially decides the merit of the dispute is immediately appealable, whereas the award which decides some of the questions raised, without resolving the arbitral proceeding, is appealable only together with the final decision.
The Supreme Court of Cassation recently considered the nullification of an arbitral decision based on a violation of the rules regarding the merit of the dispute, as set out in Article 829(3) of the Civil Procedure Code as modified by Decree-Law 40/2006. According to the previous version of Article 829(2) of the Civil Procedure Code, unless the parties expressly agreed otherwise, an arbitration award could be appealed for a violation of mandatory laws; however, the revised text overturns this clause.
The Supreme Court of Cassation recently ruled on a dispute between two companies which had accepted two separate arbitration clauses. The court decided that the existence of two arbitration clauses governing the same relationship is a question of merit, rather than jurisdiction, which excludes the possibility that the court examining the procedural facts can also decide who is in charge of the dispute.
A recent Supreme Court of Cassation decision examined whether arbitrators can impose on parties mandatory time limits for the expiry of allegations, conclusions and evidence. The decision clarified that – given the power of arbitrators to regulate arbitration proceedings under the Civil Procedure Code – arbitrators can fix mandatory deadlines, provided that the parties have been informed of this in advance.
Healthcare & Life Sciences
In addition to setting out the legal scope for the safety of medical treatments and patients, Law 24/2017 provides the scope for imposing an effective risk management policy on healthcare personnel and prescribes risk allocation standards in the case of damages arising from medical treatments. It also provides for situations of impunity when these events occur despite the guidelines being followed.
The Supreme Court of Cassation recently stated that following the legislative amendment introduced by Law 134/2012, the amended Article 345(3) of the Code of Civil Procedure forbids the filing of new documents during appeal. This is regardless of whether the documents appear to be essential, except for when the party proves the impossibility of filing them before the court of first instance for reasons beyond its control.
In a recent decision, the Supreme Court of Cassation consulted its united sections on an important question regarding the specificity of reasons for appeal under Article 342 of the Civil Procedure Code. The question concerned whether the code requires an appellant to specify different content as part of its reason for appeal or provide only a detailed criticism of sections of the appealed decision.
Court finds that bankruptcy receiver can start civil and criminal proceedings against company directorsItaly | 12 September 2017
The Supreme Court of Cassation recently found that a bankruptcy receiver has the right to institute civil and criminal proceedings for liability against company directors, even in relation to unfair preference in a bankruptcy committed through preferential debt payments in violation of the equality of creditors' principle. The court underlined the error in the argument that preferential payment "could cause a decrease of company capital by more than what would occur respecting the principle of the equality of creditors".