The objection to the jurisdiction of the ordinary court in favour of arbitrators, pursuant to Article 819-ter of the Code of Civil Procedure, constitutes a proper objection, not raisable of the court’s own motion, which must be raised, on pain of preclusion, in the statement of defence or in the first available defensive pleading. Where such objection is raised in the written statement filed within the interlocutory injunctive sub-proceedings in the course of litigation, it must be deemed to have been duly and timeously introduced into the thema decidendum also for the purposes of the proceedings on the merits, given that the interlocutory injunctive proceedings instituted in the course of litigation and the related proceedings on the merits do not constitute two distinct and autonomous proceedings, but represent two phases of a single procedural matter, with the consequence that it is not necessary to raise the objection again in a subsequent pleading.
The regime of corporate arbitration pursuant to Articles 34 et seq. of Legislative Decree No. 5 of 17 January 2003, and in particular the sanction of nullity for arbitration clauses which do not confer the power to appoint all arbitrators upon a person external to the company, applies also to partnerships (società di persone). This principle serves the general interest purpose of ensuring an equal position for the parties in appointing the adjudicating body and the impartiality of the latter, a requirement present both in companies limited by shares and in partnerships. The sole subjective limitation to the application of the regime is that relating to companies which make recourse to the risk capital market.
An arbitration clause contained in the articles of association of a partnership which provides for the appointment of one arbitrator by each partner, rather than conferring the power to appoint all arbitrators upon a person external to the company, is vitiated by nullity pursuant to Article 34, paragraph 2, of Legislative Decree No. 5 of 17 January 2003. Such nullity, designed to safeguard the impartiality of the adjudicating body, is raisable of the court’s own motion and vitiates the entire arbitration agreement, with the consequent jurisdiction of the ordinary court to hear the dispute.