The Supreme Court of Cassation recently addressed a supply contract between two parties that contained a ritual arbitration clause. Pursuant to the clause, an arbitration proceeding had been commenced, which had resulted in the defendant being ordered to pay damages. The defendant had subsequently appealed the arbitral decision for alleged violation of the procedural rules, despite the fact that appeals for the violation of substantive rules are precluded by legislation and case law.
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 government recently introduced additional measures to tackle the COVID-19 pandemic. A number of specific rules were introduced for the transport of airline passengers which must be complied with by airlines and airports to contain the spread of COVID-19 in Italy. The new rules will be in force until 17 May 2020, but they remain subject to extension or amendments in light of the continuously evolving scenario.
This article provides an overview of measures which the government has implemented over the past month to mitigate the effects of the COVID-19 pandemic with regard to airports, air carriers, passenger claims and drones. As airlines have had to significantly reduce flights and many airports have been temporarily closed, the pandemic has had significant adverse effects for stakeholders at all levels.
The Supreme Court recently found that for gratuitous carriage not performed by an air transport undertaking, damage compensation rights do not expire within the two-year limitation period established by Article 35 of the Montreal Convention. In other words, when the relationship between parties is not regulated by a contract, the general principle of neminem laedere (ie, general duty of care) applies. As a result, the ordinary time-bar rules for liability in tort apply.
The Italian Civil Aviation Authority (ENAC) recently approved a new drone regulation which will ease the transition to the EU Basic Regulation. Although EU legislation has already outlined a clear picture of the rules that will be definitively operational in the next few years, ENAC's regulation aims to safeguard the prerogatives and rights acquired by operators in the period before the EU drone legislation enters into force.
The International Air Transportation Association (IATA) recently published a report on the Italian air transport market, focusing on the developments that would occur if more efficient conditions were introduced. According to IATA, civil aviation is competitive in terms of air transport support, but airport and passenger ticket taxes make Italy the seventh most expensive country at the continental level. This is having an adverse effect on Italy's attractiveness as a location for both business and tourism.
The Ministry of Economy and Finance recently launched a public consultation process on a draft decree setting out the rules for a fintech sector regulatory sandbox. The draft decree aims to promote technological innovation by allowing fintech companies to test new IT services and products in the financial, credit and insurance sectors under the supervision of the competent authorities for a limited period.
A recent reform introduced a non-possessory floating pledge to the Italian legal framework. Under the reform, the perfection of such security can take place without the delivery of a pledged asset to the secured creditor, thus introducing an important exception to the general legal framework. Similar to the floating charge structure, the absence of a dispossession requirement enables entrepreneurs to retain the availability of collateral which can be used in the course of the productive cycle.
The government recently issued Decree-Law 22/2019, which is aimed at ensuring the security, financial stability and integrity of financial markets in the event of a so-called 'hard Brexit'. Under the decree-law, UK banks that carry out activities subject to mutual recognition on the United Kingdom's withdrawal date can continue carrying out their activities in Italy by serving notice to the Bank of Italy. Further, Italian branches of UK banks may continue to carry out their activities by serving notice to the Bank of Italy.
The Ministry of Economy and Finance recently published a press release announcing the measures which the Italian government, in close consultation with the regulatory authorities and following discussions with trade associations, intends to take in order to avoid a hard Brexit having a cliff-edge effect on financial activities. During the transitional period provided by the temporary measures, banking intermediaries will be able to continue to operate according to existing laws and regulations.
Virtual currencies represent uncharted territory in Italy for various reasons, and the current rules and restrictions will likely need structural adjustments to make them work. The fact that the issuer of virtual currencies for investment purposes is in most cases based in a foreign country (often outside the European Union) could make the scope of current exemptions under the Securities Act too broad.
The Bank of Italy recently opened a public consultation on certain regulatory provisions to be enacted in order to bring forward the implementation of the EU Markets in Financial Instruments Directive and the EU Markets in Financial Instruments Regulation. The proposed provisions aim to supplement the Italian legal framework regarding the organisational duties of regulated intermediaries that provide investment services and activities, including banks.
The Supreme Court of Cassation recently clarified the distinction between shareholder financing and shareholder capital contributions, with the former being a loan and the latter being a capital contribution in order to finance a company. This decision confirms previous decisions which stated that the courts must assess shareholders' actual financial commitment to a company and not only the item recorded in the company's balance sheet.
The Court of Rome Companies Tribunal has set out an important principle concerning shareholders' rights regarding certain company decisions. The court granted an interim measure and consequently declared ineffective the resolution of a company's shareholders' meeting upon the request of a shareholder who claimed that the company's board of directors had failed to provide the shareholders with documents concerning a merger operation which would lead to a change of control over the company.
The Supreme Court of Cassation has set out important principles regarding the duties of chairs and deputy chairs of company boards of directors. In particularly, chairs' duties are of an organisational nature and must be fulfilled in a neutral way with the aim of coordinating the board as an impartial body. The court also ruled on directors' right to be indemnified in the event of their revocation without cause before the expiration of their appointment.
A recent Court of Cassation decision concerned the amendment of a company's articles of association to considerably increase the percentage of legal reserve and extraordinary statutory reserve before dividends were distributed in favour of shareholders. The question before the court was whether the amendment was grounds for a shareholders' withdrawal on the basis that it was an amendment of articles of association with regard to shareholders' voting rights or their participation.
Article 2497 of the Civil Code sets out that companies which provide direction to coordinate their subsidiaries are directly liable to the subsidiaries' minority shareholders for any damages caused to profitability and shareholding value by a violation of fair management principles. In this context, a recent Supreme Court of Cassation decision examined how to assess whether a corporate group exists and the scope of controlling entities' direction and coordination activities.