Gildemeister Energy Services Italia S.r.l. v. Ralos Italia S.r.l. Unipersonale

At a glance

Parties

Gildemeister Energy Services Italia S.r.l. (formerly a+f Italia S.r.l.) v. Ralos Italia S.r.l. Unipersonale

Case no.

Corte di Cassazione, Sezioni Unite Civili, Order No. 22433/2018 (R.G. No. 15589/2017)

Court

Italy, Corte Suprema di Cassazione, Joint Civil Sections (Sezioni Unite Civili)

Forum and rules

Preventive ruling on jurisdiction (Art. 41 Italian Code of Civil Procedure), in an opposition to an injunction before the Tribunale di Patti (No. 1479/2013)

Treaty

Arbitration clause (Art. 22 of the subcontract): DIS arbitration, three arbitrators, seat Frankfurt am Main; German governing law (Art. 21); New York Convention and Law No. 218 of 1995

Court

Stefano Schirò (First President), Camilla Di Iasi (Section President), Francesco Antonio Genovese (Rapporteur), Enrica D'Antonio, Ettore Cirillo, Raffaele Frasca, Maria Acierno, Luigi Alessandro Scarano, Alberto Giusti

Sector

Construction of a photovoltaic park

Outcome

Application granted. The Italian courts lack jurisdiction because the dispute is referred to foreign arbitration, and the injunction is revoked. Decided 3 July 2018; dated 21 September 2018.

Amount

The amount of the invoiced claim is not stated. Each party bears its own costs for the whole proceedings.

The dispute

Ralos Italia obtained an injunction (decreto ingiuntivo) from the Tribunale di Patti against Gildemeister Energy Services Italia (GES). The injunction was for invoiced sums owed under a subcontract to design, install, build and commission a photovoltaic park. GES opposed the injunction. It then applied to the Supreme Court for a preventive ruling on jurisdiction under Article 41 of the Code of Civil Procedure. GES relied on Article 22 of the contract, which referred all disputes on disposable rights arising from the contract to arbitration by three arbitrators under the German Arbitration Institute (DIS), seated in Frankfurt am Main and applying German law. Both companies have their seat in Italy, which raised the question whether a defendant domiciled in Italy may seek a preventive ruling on jurisdiction. Ralos did not appear. The Public Prosecutor asked the Court to find that the Italian courts lacked jurisdiction.

Key holdings

1. An application for a preventive ruling on jurisdiction under Article 41 of the Code of Civil Procedure can be made while opposition proceedings against an injunction are pending. An injunction is not a decision on the merits. ¶ 1; ¶ 3.2
2. An objection based on a foreign arbitration clause raises a question of jurisdiction. It can be raised at any stage if the defendant objected in its first defensive pleading. GES did so in its writ of opposition, served electronically on 21 October 2013. ¶¶ 2–2.1
3. Under Article 4(2) of Law No. 218 of 1995, parties may contract out of Italian jurisdiction in favour of foreign arbitration, even when both are Italian. The derogation must be proved in writing and concern disposable rights, and the clause must not be part of a standard-form contract under Article 1341 of the Civil Code. ¶¶ 2.3, 2.7
4. In general, a defendant resident in Italy cannot seek a preventive ruling on jurisdiction. The rule is not absolute: such a defendant may apply if it shows a specific interest in excluding Italian jurisdiction because of a different exclusive connecting factor, such as a valid foreign arbitration agreement. GES showed that interest, and the agreement was certain and not contested. ¶¶ 2.6–2.10
5. Once the Italian court is found to lack jurisdiction, the merits proceedings cannot continue. The court that issued the injunction can only declare it null, so the Supreme Court revoked the injunction together with its ruling on jurisdiction. ¶¶ 3–3.2
6. Because the issues decided were new, each party bears its own costs for the whole proceedings. ¶ 4; operative part

Procedural history

1. 2013Ralos Italia obtains an injunction against GES from the Tribunale di Patti (proceedings No. 1479/2013).
2. 21 October 2013GES serves its writ of opposition electronically and objects to the court's jurisdiction on the basis of the arbitration clause.
3. 2017GES applies to the Supreme Court for a preventive ruling on jurisdiction (R.G. No. 15589/2017).
4. 3 July 2018The Joint Civil Sections decide the application in chambers.
5. 21 September 2018Order No. 22433 is dated: the Italian courts lack jurisdiction, the injunction is revoked, and each party bears its own costs.

Tribunal, counsel and experts

Decided by

• Stefano Schirò Judge, Corte di Cassazione, Sezioni Unite Civili (First President)
• Camilla Di Iasi Judge, Corte di Cassazione, Sezioni Unite Civili (Section President)
• Enrica D'Antonio Judge, Corte di Cassazione, Sezioni Unite Civili
• Francesco Antonio Genovese Judge, Corte di Cassazione, Sezioni Unite Civili (Rapporteur)
• Ettore Cirillo Judge, Corte di Cassazione, Sezioni Unite Civili
• Raffaele Frasca Judge, Corte di Cassazione, Sezioni Unite Civili
• Maria Acierno Judge, Corte di Cassazione, Sezioni Unite Civili
• Luigi Alessandro Scarano Judge, Corte di Cassazione, Sezioni Unite Civili
• Alberto Giusti Judge, Corte di Cassazione, Sezioni Unite Civili

For the claimant

Roberto Usai · Roberto Santucci

Run a conflict check on these names →

Keywords

• regolamento preventivo di giurisdizione
• preventive ruling on jurisdiction
• foreign arbitration clause
• lack of jurisdiction
• decreto ingiuntivo
• injunction opposition
• Law No. 218 of 1995
• Article 4 derogation of jurisdiction
• New York Convention
• DIS arbitration
• Frankfurt am Main
• German law
• domestic parties foreign arbitration
• photovoltaic park
• subcontract
• Italy
• Sezioni Unite

Summary generated with AI from the published documents — refer to the award for the authoritative text.