An arbitration clause for contractual arbitration (arbitrato irrituale), included in the articles of association of a company, which provides for the submission to arbitrators of disputes between shareholders or between shareholders and the company concerning disposable rights relating to the corporate relationship, renders inadmissible any claim brought before the ordinary court, since this does not constitute a question of jurisdiction but rather of admissibility of the judicial action.
A dispute concerning the recovery of undue payment for sums paid in excess of the amount due for the subscription of a share capital increase does not concern non-disposable rights, as it does not involve matters relating to the acquisition or loss of shareholder status, but rather aspects of a purely patrimonial nature connected to such status, with the consequent applicability of the arbitration clause in the articles of association.
Contractual arbitration (arbitrato irrituale) is distinguished from institutional arbitration by the parties’ intention to entrust the arbitrators with the resolution of the dispute through a contractual instrument, by means of an amicable settlement or an ascertainment agreement attributable to their will, committing themselves to regard the arbitral decision as an expression of their own personal will. An unequivocal indication of the contractual nature of the arbitration is a clause providing for an irrevocably binding decision for the parties, with dispensation from all procedural formalities.
The presence of an arbitration clause does not prevent a party from requesting and obtaining from the ordinary court an injunction order for the credit arising from the contract, without prejudice to the right of the respondent to raise the objection of arbitral jurisdiction in opposition proceedings, with the consequent obligation for the court hearing the opposition to revoke the injunction order and refer the parties to the arbitrators.