In matters of challenge to an arbitral award, the conduct of a party who initiates enforcement proceedings to obtain payment of the amount determined by the arbitrators does not constitute acquiescence precluding challenge, as it is not incompatible with the intention to challenge the determination in order to obtain a more favourable outcome.
In the case of withdrawal ad nutum by a member of a limited liability company, exercised pursuant to Article 2473, paragraph 2, of the Civil Code, the notice period of one hundred and eighty days imposed by law determines that the effects of the withdrawal run from the expiry of such notice, it being impossible to apply the different principle according to which withdrawal takes immediate effect upon mere communication to the company of the intention to withdraw. It follows that the reference date for the valuation of the interest, indicated by Article 2473, paragraph 3, of the Civil Code as “the moment of the declaration of withdrawal”, must be identified as the day on which the withdrawal becomes effective.
The provision of Article 2473, paragraph 2, of the Civil Code, which allows the articles of association to provide for a notice period of longer duration but not exceeding one year, does not permit derogations in the articles of association which reduce the minimum period of one hundred and eighty days provided for withdrawal ad nutum in limited liability companies.
In matters of challenge to an arbitral award for nullity pursuant to Article 829, paragraph 1, number 9, of the Code of Civil Procedure, the question concerning breach of the right to be heard must not be examined from a purely formal perspective, but requires an inquiry into the existence of an actual infringement of the right to defence. Accordingly, the appellant bears the burden of specifying which documents were not submitted for examination and of setting out the defensive arguments which could have been advanced had such documents been previously disclosed.
In matters of challenge to an arbitral award, the failure to find grounds of nullity precludes the opening of the rescissory phase and, consequently, the examination of questions of merit relating to the correctness of the calculations and assessments made by the arbitrators.
The defect of contradiction in the award, relevant pursuant to Article 829, paragraph 1, number 11, of the Code of Civil Procedure, is not capable of being established where the statements contained in the reasoning, although referring to the same factual datum, are functional to distinct legal assessments and are not logically incompatible with each other.
In matters of limited liability companies, the defect of nullity of a shareholders’ resolution for “absolute absence of information”, provided for by Article 2479-ter, paragraph 3, of the Civil Code, is capable of being established exclusively in the event of failure to convene the member or lack of information on the commencement of the deliberative procedure or on the matters to be discussed at the meeting, whereas complaints concerning the alleged falsity or unreliability of the accounting data appearing in the financial statements are not relevant for the purposes of establishing such defect.