In case of doubt, an arbitration agreement is to be construed broadly pursuant to Article 808-quater of the Code of Civil Procedure, in the sense that the arbitral jurisdiction extends to all disputes arising from the relationship to which the agreement relates, including challenges to shareholders’ resolutions where they pertain to disputes between shareholders.
The nullity of the award for breach of the right to be heard in the arbitral proceedings must be examined not from a merely formal standpoint, but in the context of an inquiry aimed at ascertaining whether there has been an actual impairment of the opportunity to plead and reply, so as to determine whether the act has nonetheless achieved its purpose of establishing a proper adversarial process and whether the non-compliance has caused specific prejudice to the party’s right of defence.
There is no inherent conflict of interest such as to require in every case the appointment of a guardian ad litem under Article 78 of the Code of Civil Procedure in arbitral proceedings concerning challenges to shareholders’ resolutions of companies, nor is it correct to assess a conflict of interest on the part of the director representing the company solely by reason of the fact that the resolution under challenge concerns matters pertaining to that director, since to identify a conflict of interest in such circumstances would lead to the systematic appointment of a guardian ad litem with the distortive effect of divesting the board of directors of the power to decide the company’s litigation strategy.
The intervention of a shareholder or director in arbitral proceedings concerning a challenge to a shareholders’ resolution is in the nature of dependent joinder in support of a party, aimed at protecting the interest in supporting the position of the company as the holder of a qualified interest, and does not constitute an autonomous substantive right distinct from that of the company.
A person who has intervened in support of a party in the arbitral proceedings does not have standing to challenge the award independently, not being the holder of a right that is distinct and autonomous from the right asserted by the principal party in the arbitral proceedings.