THE DEFINITION OF THE DISPUTE BY A FOREIGN JUDGE DOES NOT PREVENT FROM THE PROMOTION OF THE PREVENTIVE REGULATION ON THE JURISDICTION
This is how the Joined Chambers of the Italian Supreme Court of Cassation, with decision of May 23, 2017, held following the motion for a regulation of jurisdiction filed by a South Korean company, pending proceedings on the merit before the Court of Nocera Inferiore aimed at ascertaining alleged contractual infringements.
In particular, the applicant requested the Supreme Court Judges to ascertain and declare the lack of jurisdiction of the Italian Judge, as a result of the arbitration clause inserted in the contract enforced by the other party and according to which the Arbitration Chamber of Seoul should have had the power to resolve any dispute arising out of, relating and/or connected to the contract itself. That clause had been previously enforced by the applicant with regard to the same matter subsequently brought to the attention of the Judges of Nocera Inferiore and the matter was decided by the Korean arbitrators on 16 May 2016.
With the present decision the Court of Cassation, by declaring the lack of jurisdiction of the Italian Judge, granted the appellant’s argument and specified that the promotion of the regulation of jurisdiction is not precluded by the decision held by the South Korean arbitrators, since the preclusion of the remedy whereof Art. 41, para 1, Italian Code of Civil Procedure, only applies to judgments issued by an Italian Judge, while it does not to judgments issued by the foreign court, which instead trigger the possible application of other legal instruments.