11/01/2018 - ARBITRATION CLAUSE AND OPPOSITION TO AN ORDER FOR PAYMENT: RECENT CASE LAW
The Italian Supreme Court has confirmed (Order n.21550 of September 18, 2017) that the provision of an arbitration clause, conferring jurisdiction on an (domestic or international) arbitral tribunal to decide over disputes concerning the interpretation and application of an agreement, does not prevent the creditor from resorting to the Italian Court to obtain an order for payment against the debtor.
The proceeding to obtain an order of payment is an ex parte summary proceeding, since the Italian Court rules on the creditor’s application without hearing the debtor or allowing him or her to submit a response or remarks. The debtor is heard only subsequently, if he or she challenges (i.e. opposes) the order for payment, within 40 days from the date he or she has received the notice.
Therefore, the summary proceeding to obtain the order of payment does not involve any decision over a “dispute”, because the order is issued by the judge inaudita altera parte. In case the debtor decides to oppose the order of payment, however, a real dispute between the parties arises and it shall be referred to the arbitral tribunal, according to the arbitration clause included in the commercial agreement (see, among the others, Cass., Sezioni Unite, No. 19473 of 2016).
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avv. Sondra Faccio