However, in all the cases illustrated above, the SC dismissed the application of arbitration agreements to disputes relating to other contracts even when connected to the main agreement containing the arbitration clause. A concern of the Supreme Court was in this case that different disputes arising from the same contract decided upon by different tribunals (State tribunals and arbitration tribunal) could lead to contradictory decisions.
In a similar situation - where the arbitration agreement of a binding term sheet for the purchase of real estate referred to arbitrators only 'the interpretation of the contract' - the buyer brought an action against the seller aimed at obtaining the performance of the contract.Īlso in this case the SC confirmed the power of arbitrators to render an award, in spite of the wording of the arbitration agreement limited to the “interpretation of the contract”. It has been held also that a controversy where one party claimed the rescission for breach of a contract was included in the scope of application of an arbitration agreement which only encompassed disputes concerning the interpretation and/or execution of the contract. Disputes arising from the same contractĪ) As to the first type of litigation, the Italian Supreme Court of Cassation (hereinafter also 'SC') has consistently held that the arbitration clause refers to the contract in which it is inserted and, in the absence of an express will to the contrary, any other dispute that has its legal ground in the contract must be submitted to arbitration, even where the litigated case goes back to a period prior to the moment on which the agreement between the parties has been reached. In this respect, the Italian lawmaker has foreseen two kinds of disputes: a) disputes arising from the same contract b) disputes originating from a different contract but pertaining to the same (contractual-economic) relationship. The application of the principle in the case law of the Italian Court of Cassation Still, however relaxed the application of the said principle might be in order to facilitate the use of alternative system for disputes resolution, as chosen by the parties to the contract, the fundamental rule of the privity of contract set forth under the Italian Civil Code, cannot be derogated. Thus, the construction of the clause shall be made in such a manner to include any disputes arising out of the same contractual relationship unless any express contrary will is stated by the parties in the same agreement.
Such rule is aimed at expanding the application of the arbitration clause beyond a strict interpretation of the consent of the parties to the contract containing such clause.
SAID PRINCIPLE PRO
This rule, set forth in article 848-quater of the Italian Code of Civil Procedure, goes under the name ' in dubio pro arbitrato', and provides that disputes which are not clearly and explicitly included in the scope of application of the arbitration clause but arising from the same contract which includes such arbitration clause, shall be referred to the arbitrator(s). Ughi e Nunziante, to Italian law the arbitration clause under which the parties agree to entrust future disputes to arbitrators extends to all disputes arising from the contract or the relationship to which the contract refers.
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