Decision No. 2736/2017 by the Joint
Sections of the Court of Cassation

Under the Italy law system, the  preliminary ruling on Italy’s jurisdiction is
an extraordinary and exceptional institute, and cannot be raised by a defendant
having residence or domicile in Italy.

The case.

An American company served an injunctive decree
(order to pay) for approx. € 350K to an Italian firm.

The Italian debtor raised an objection,
applying for a preliminary decision on Italy’s jurisdiction at the Court of
Cassation accordingly to article 41 of Italy civil procedure code.

The Italian defendant argued that the dispute
was submitted to arbitration following to a previous frame-agreement, closed by
the company who sold the branch of business to the defendant, including the transfer
of the contract who led to the dispute.

The Supreme Court declared the appeal
inadmissible, because the preliminary ruling on jurisdiction was raised by a
company established in Italy.

Main relevant
jurisprudence.

Decision no. 24153/2013 – Joint sections of the
Court of Cassation

Order no. 13569/2016 – Joint sections of the
Court of Cassation

The decision.

The Court of Cassation mentioned a former
decision (Order 13569/2016) in which the Joint Sections already stated that the
preliminary ruling about jurisdiction is a legal institute of extra-ordinary
and exceptional nature, and as such cannot be extended to hypothesis not
explicitly mentioned in art. 41 of the civil procedure code.

Therefore, it is not admissible if raised by a
defendant who is resident or domiciled in Italy: the preliminary ruling
presupposes that the dispute concerns a “foreign party” (art. 37 of civil
procedure code).

In the current system of international law
under the frame of Law may 31^st, 1995 no, 218, there is no room for
a petition of preliminary ruling on jurisdiction if raised by a resident
defendant, namely having his domicile or residence in Italy.

The Supreme Court declared the appeal as
inadmissible.

Comments.

The defendant, if established in Italy, cannot
apply for the preliminary ruling on Italy’s jurisdiction about the litigation:
the institute (of preliminary ruling on jurisdiction) is not applicable if the
defendant is based in Italy, as its goal is to cases where the defendant is
neither resident nor domiciled in Italy, so that such a procedural remedy may
be used to define international law issues that might rise.

In this case, the general criterion about
jurisdiction (jurisdiction of the defendant) is applicable, so that the judge
can deal with the exception(s) raised by the parties, including objections
about the arbitration clause.

The Court of Cassation stated again that,
notwithstanding the abrogation of art. 37 of the civil procedure code, the
cross-reference by art. 41 is a renvoi,
having the aim of inserting the provisions within the calling article.