The arbitration clause is not applicable in the event of liability action brought by the liquidator pursuant to Article 146 of the Bankruptcy Law

Civil Cassation, Section VI, 23 July 2020, Ordinance no. 15830

The Court of Cassation, with the order in question, has ruled that should the receiver exercise an action for liability pursuant to Article 146 of the Bankruptcy Law, the arbitration clause contained in the articles of association of the bankrupted company shall not apply for the purposes of devolving the dispute to arbitration.

Article 146 of the Bankruptcy Law allows the receiver to exercise the liability actions provided for in Articles 2392 et seq. of the Civil Code against directors, members of the control bodies, general managers, and liquidators of the company. Articles 2393 and 2394 govern two separate actions: the corporate liability action against directors and the corporate liability action against creditors.

In this case, the Court of Naples had declared its partial lack of jurisdiction – by virtue of the aforesaid arbitration clause contained in the bylaws of the bankrupted company – with reference to the company’s liability action against the directors, while confirmed its jurisdiction for the sole liability action against the company’s creditors, to whom the aforesaid clause could not be applied, since the creditors were third parties with respect to the company and any agreements contained in the bylaws could be enforced against them.

The receiver then appealed against the decision of the Court of Naples, censuring the declaratory jurisdiction on the assumption that the arbitration clause was not in any case applicable to the liability action pursuant to Art. 146 B.L.

In fact, according to the constant jurisprudence of the Court (see ex aliis Cass. Civ., the sentence no. 19308/2014, Cass. Civ., the sentence no. 28533/2018), the arbitration clause contained in the Bylaws of the bankrupted company is not applicable to the action brought by the receiver against the directors, pursuant to Article 146 B.L., on the assumption that such action would have a unitary and inseparable content, within which, in the event of the company’s bankruptcy, both the actions provided for in Articles 2393 and 2394 of the Civil Code would converge.

The Judges of the Court, with this order, have therefore confirmed the above interpretation, considered the appeal brought by the receiver to be well-founded and affirmed, as a result, the full jurisdiction of the Court of Naples: a separation of the cases would, in fact, contrast with the affirmed unitary and inseparable connotation of the action exercised by the receiver, whereas the actions of liability referred to in Articles 2393 and 2394 of the Civil Code have a unitary and inseparable content. 2392, 2393, and 2394 of the Civil Code in fact merge into a single action, the one pursuant to Article 146 B.L., which achieves “the combination of the assumptions and purposes of the two ordinary actions”.

Attached is Order No. 15830/2020 of the Court of Cassation.

Fabiano Belluzzi