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Corporate disputes are capable of arbitration, under Italian law, if they concern negotiable rights (Art. 34(1) of Legislative Decree no. 5 of 17 January 2003). Therefore, the question is: what does “negotiable rights” mean?
The Court of first instance of Florence established an interesting doctrine of arbitrability of corporate disputes, which is enunciated in a recent decision (no. 2906 of 8 September 2016, Italian text available here).
I already examined that doctrine (in this post); moreover, the issue of arbitrability of corporate disputes has often been mentioned on this blog (for instance, in this post, in this one and this one too).
The case heard by the Court of Florence was quite simple. The claimant, a quotaholder of a limited liability company, challenged a resolution passed by the general meeting. The defendant, that is the company, appeared in Court and objected to the jurisdiction of State Courts, because of the stipulation of an arbitration clause in its Articles of association. The Court of Florence upheld that objection and declared that the jurisdiction rested with the Arbitral Tribunal.
So, why is that decision of interest?
The claimant’s case was that he has been not duly summoned to the general meeting. As a consequence, the resolution would have been void (and not just voidable), and therefore a doubt arose as to the arbitrability of the dispute.
The Court of Florence ruled that the dispute was capable of arbitration and, to do so, it carefully examined the law.
First, as a general rule, corporate disputes – including those concerning the validity of general meeting resolutions – are capable of arbitration. In this respect, the Court of Florence referred to the case law of the Italian Supreme Court (Supreme Court, VI Civil Chamber, decision no. 17283 of 28 August 2015, Italian text available here).
In addition, a dispute concerning the validity of a resolution passed by a general meeting to which a quotaholder has not been summoned is also capable of arbitration. Indeed, although such a resolution is void, it may be so declared only if it is challenged within a three-year limitation period. Also in this respect, the Court of Florence referred to the case law of the Italian Supreme Court (Supreme Court, VI Civil Chamber, decision no. 15890 of 20 September 2012, Italian text available here).
Moreover, the Court derived a general principle from that particular rule. If the law sets forth that a resolution may only be challenged within a certain limitation period, the relevant dispute concerns negotiable rights. As a consequence, it is capable of arbitration.
At the end of the day, the disputes non capable of arbitration are only those concerning the validity of resolutions changing the corporate purpose to an impossible or unlawful one. Indeed, these resolutions may be challenged without time limits.
Another kind of disputes non capable of arbitration, which the Court of Florence did not mention, are those in which the law requires the intervention of the public prosecutor. Indeed, the law expressly sets forth that these disputes are not capable of arbitration (Art. 34(5) of Legislative Decree no. 5/2003).
What about the disputes concerning the resolutions approving the company’s financial statements? Are they capable of arbitration? In the light of the doctrine of the Court of Florence: yes, they always are. Indeed, these resolutions may only be challenged within the approval of the following financial statements (Art. 2434(b) of Italian Civil Code). However, the Supreme Court reached the opposite conclusion: it stated that if the claimant’s claim concerns the content of the financial statements, the jurisdiction only rests with State Courts. On the contrary, the jurisdiction may lie with an Arbitral Tribunal if the claim does not relate to the content of the financial statements: say, it concerns the summons to the general meeting.
This doctrine of the Italian Supreme Court does not have a proper foundation in law. Moreover, the relevant decisions of the Supreme Court seem to be made per incuriam of the case law of the same Supreme Court, referred to by the Court of Florence.
So, we should wait for the Supreme Court to review its doctrine – or for the Parliament to clarify the law.
Isn’t the logical view that any matter is capable of arbitration if the two parties are able to make a legally binding decision about it themselves?
In that analysis, the function of an arbitrator is no more and no less than to decide any private matter that the parties could have agreed but have delegated to the Arbitrator(s).
If the decision is to have public law implications, it must be for a court of competent jurisdiction. But then, I’m no lawyer.