The debtor filed a notice of opposition, excluding, first of all, the incompetence of the Judge of the state, because the contract that was the title on the basis of the claim asserted included an arbitration clause, and therefore jurisdiction of arbitration
It is also apparent from the provision in the commentary that the debtor has contested also the territorial jurisdiction of the Court of Rome (to be agreed upon, in a subsequent agreement concluded between the parties, and having perhaps the nature of a settlement, the exclusive jurisdiction of the Court of Turin) and was also defended on the merits, denying duty, the amount the subject of the order for payment.
The Court of Rome upheld the objection of arbitration and declared the invalidity of the injunction the opposite. that of the survival of the arbitration clause in the event of a transaction: this theme has recently worked on the Milan Court, in its judgment no. of the twenty-one December, is available In a nutshell (and with a certain degree of approximation), the creditor must provide written proof of his claim, and that is enough.
Established the cross-examination of the notification of appeal, and the decree to the debtor, the latter may cause a judgment to cognition full, proposing opposition to injunctive relief and in this judgment with the knowledge of the full can raise exceptions (procedural and on the merits, and to carry out its defenses.
Even if the source of the credit claimed by the creditor consists of a contract that contains an arbitration clause, the Judge, the state may not for this reason dismiss the appeal for the injunction: the exception to arbitration is an exception in the strict sense, that can be raised by the defendant is promptly made (by the actor opponent in the writ of summons, in the case of an objection to the injunction), and may not be detected by the Court. This in effect is the constant teaching of the Supreme Court (among the most recent, you can sue Cass, Sez. II Civ (four march, no, which is available in other words, the injunction is pronounced, despite the stipulation of the arbitration clause, the debtor may, however, appeal, and obtain the declaration of nullity of the decree, raising the exception of arbitration. When it raises this exception, the debtor is limited to attaching the stipulation of the arbitration clause. If the clause is valid and effective, the Judge of the state waiving its incompetence (or the inadvisability of the question, in the case of informal arbitration). The Court does not evaluate, on the contrary (as for example is done in certain sorts of) if the exception of arbitration is merely a tactic, i.e. does not check if there is or not an actual dispute on the merits to remit to the Arbitral Tribunal Just to avoid attitudes, delaying tactics on the part of the debtor, some arbitration clauses that exclude from their scope of application the procedure for injunctive relief. I venture, however, to doubt of their utility or of their opportunity I doubt of the utility of the clauses that exclude from their scope the phase monitoring (such as that of which I spoke to you about in), since such a step is excluded without the need for specification no. I doubt instead of the opportunity of the provisions that exclude from their scope the entire proceedings for injunctive relief (and therefore also the phase of the opposition), since they run the risk of frustrating the intention of the parties to see their dispute resolved in arbitration.
