A dispute concerning the invalidity of a resolution of a limited liability company on account of failure to give notice to a shareholder, being subject to the curative regime under art. 2379 bis cod. civ., does not concern non-arbitrable rights within the meaning of art. 806 cod. proc. civ. and may therefore be referred to arbitration by means of an aritration clause in the company’s articles. Only disputes relating to the challenge of resolutions with an unlawful or impossible object, and those passed in complete absence of information within the meaning of art. 2479 ter cod. civ., concern non-arbitrable rights.
The non-arbitrability of a right constitutes the limit of the arbitration agreement and must not be confused with the mandatory nature of the rules applicable to the legal relationship: the latter does not preclude reference to arbitration, which may find a breach of mandatory law without the award producing effects prohibited by law.
In arbitration (arbitrato rituale), the parties aim to obtain an award capable of being declared enforceable and of producing the effects under art. 825 cod. proc. civ. in compliance with the rules of arbitral procedure; in contractual arbitration (arbitrato irrituale), they intend to entrust the arbitrator with the resolution of the dispute solely through a contractual instrument, by way of an amicable settlement or a declaration of certainty referable to the parties’ own will, with the parties undertaking to regard the arbitrators’ decision as an expression of their own will.
An arbitration clause has the nature of contractual arbitration (arbitrato irrituale) where it states the parties’ commitment to treat the decision as final and binding in the same way as a contract concluded as an expression of their own personal will; for that purpose it is irrelevant whether the decision is binding even if signed only by a majority of the arbitrators, or whether it is a decision on the law without compliance with the forms of the code of procedure, given the compatibility of such features with contractual arbitration (arbitrato irrituale), which must nonetheless respect the principle of adversarial procedure.
Where an arbitration clause provides for contractual arbitration (arbitrato irrituale), a claim brought before the ordinary court must be declared inadmissible (improponibile) and no question of territorial jurisdiction arises.