In the case of a corporate arbitration clause inserted in the articles of association before the amendment introduced by Legislative Decree No. 40 of 2006, it is admissible to challenge the award for violation of the rules of law relating to the merits of the dispute even where, in deciding, the arbitrators have ruled on arbitrable matters in proceedings not concerning the invalidity of shareholders' resolutions, since to establish whether the challenge is permitted by law, regard must be had to the law in force at the time of stipulation of the arbitration agreement.
For the purposes of violation of the adversarial principle in arbitration, regard must be had to the objective circumstance of the use made of documentation produced late in the arbitral award to the extent that this emerges from its text, it being impossible to attribute relevance to the entirely hypothetical impact of reading the documentation on the arbitrator's internal reasoning.
The arbitrator pronounces ultra petita in violation of Article 101 paragraph 2 of the Code of Civil Procedure when declaring the nullity of share transfer deeds without such pronouncement being requested by the parties and without previously enabling them to comment on the aspect under examination.
In disputes concerning the unenforceability of share transfers for violation of the statutory pre-emption clause, the transferor holds the position of necessary joinder since it must be postulated that the judgment, to prove useful, must produce its effects also in relation to the transferor and not only in relation to the company and the transferee, given that from the pronouncement of unenforceability follows the maintenance of shareholding rights with the transferor.