Litigation & Arbitration – February 2018

In this issue of our Litigation & Arbitration Newsletter we have considered the consequences, in terms of validity, of donations of financial instruments or cash not made by public deed. The issue was the subject-matter of recent judgement no. 18725 of 2017 of the Supreme Court en banc, whereby the Judges  – after having classified the specific case as direct donation – declared its invalidity for not being compliant with the formal requirements provided for by Article 782 of the Italian Civil Code.

We have subsequently dealt with the issue of “arbitrability” of liability actions (also) for the breach of accounting principles for drafting financial statements. The Supreme Court of Cassation, with reference to a liability action against the directors and the statutory auditor of a limited liability company, has recently tackled again both the issue of the distribution of competence between arbitrators and ordinary judge and the issue of the limits to the arbitrability of the dispute, depending on the availability or unavailability of rights that are the subject-matter thereof.

We have further analysed the content of a decision on usury. The Supreme Court en banc, by judgment no. 24675 of 19 October 2017, took a stand on the admissibility and relevance of the so called “supervening usury”, that is to say the event in which, during the relationship, the agreed interest rate exceeds the usury limit (as determined according to the provisions of Law no. 108 of 7 March 1996).

We have finally dealt with the issue of delayed registration of a lease agreement in light of judgement no. 23601 of 2017 recently issued by the Supreme Court en banc that, in particular, has considered the invalidity of the delayed registration of a supplementary agreement containing an increase of the rent for properties for commercial use.