Commentary on Order No. 15861 of 2024: The Validity of 'Per Relationem' Arbitration Clauses

The recent Order No. 15861 of June 6, 2024, issued by the Court of Cassation, offers an important opportunity for reflection on the interpretation of arbitration clauses, particularly 'per relationem' clauses in the context of foreign arbitration. The ruling clarifies the necessary conditions for such clauses to be considered valid, establishing fundamental principles for their application.

Regulatory Context

The Court ruled based on Article 2 of the New York Convention of June 10, 1958, and Article 808 of the Code of Civil Procedure (c.p.c.). These provisions stipulate that parties may submit future disputes to foreign arbitrators through an arbitration clause. However, a written form is essential. Specifically, for 'per relationem' clauses, it is crucial that the reference to the document containing the clause is express and specific.

• Express and specific reference: a clear reference to the arbitration clause is required.
• General reference: a mere reference to the document or form is insufficient, as it does not guarantee the parties' awareness.
• Parties' awareness: it is crucial that both parties are fully informed of the waiver of ordinary jurisdiction.

The Ruling's Principle

New York Convention of June 10, 1958 - Written form of the parties' consent - Arbitration clause "per relationem" to another agreement or document - Validity - Conditions - Basis. Pursuant to Article 2 of the New York Convention of June 10, 1958, and Article 808 of the c.p.c., in so-called foreign arbitration, foreign arbitrators may be entrusted with the decision of disputes not yet arisen, in a preventive and contingent manner, through an arbitration clause, drawn up in writing "ad substantiam," which precisely identifies future disputes arising from the main contract; for "per relationem" arbitration clauses – that is, provided for in a different agreement or document to which the contract refers – the aforementioned formal requirement is met if the reference contained in the contract provides for an express and specific mention of the arbitration clause, not if it is general, i.e., a mere reference to the document or form containing the clause, because only the express one ensures the parties' full awareness of the waiver of jurisdiction.

Conclusions

Order No. 15861 of 2024 represents an important clarification in the field of foreign arbitration, establishing clear criteria for the validity of 'per relationem' arbitration clauses. It is essential for parties involved in international contracts to pay close attention to the drafting of arbitration clauses, ensuring they are formulated in a way that guarantees awareness and explicit agreement on any waivers of ordinary jurisdiction. Only with adequate attention to these details can future disputes be avoided and the correct application of arbitration rules be ensured.