Disputes concerning the remuneration of directors, where they do not pertain to rights which cannot be the subject of a compromise, may be submitted to arbitral determination in the presence of a statutory arbitration clause providing for the arbitral resolution of disputes between directors and the company.
For the purposes of arbitrability, disputes pertaining to rights which cannot be the subject of a compromise, falling within the mandatory jurisdiction of the courts, include disputes relating to shareholders’ resolutions having an unlawful or impossible object, giving rise to a nullity which may also be raised of the court’s own motion, and those adopted in the complete absence of information pursuant to Article 2479-ter of the Civil Code, the scope of non-compromisable rights being confined to interests protected by mandatory rules the breach of which triggers a reaction of the legal order independent of any initiative by a party.
Disputes concerning the validity of shareholders’ resolutions are arbitrable, pursuant to Article 34, paragraph 1, of Legislative Decree No. 5/2003, where they concern rights which are capable of being compromised, such disputes being subject to specific rules which also confer upon the arbitrators the interim power to suspend the resolution challenged and provide that the decision must be rendered according to law even in derogation from the arbitration clause.
The challenge of corporate resolutions is capable of being referred to arbitration where, having regard to the manner in which the parties have framed the dispute, the controversy does not directly — and not merely indirectly — affect the interests of the shareholders, the company or third parties protected by mandatory rules the breach of which triggers a reaction of the legal order independent of any initiative by a party.
Legislative Decree No. 40 of 2 February 2006, by replacing the text of Article 819-ter of the Code of Civil Procedure and providing for the right to challenge by way of a plea as to jurisdiction the judgment by which the court has affirmed or denied its own jurisdiction in relation to an arbitration agreement, brought about the reconfiguration in terms of jurisdiction of the relationship between arbitrators and the ordinary courts, superseding the approach according to which the relevant question pertained to the merits of the dispute as a waiver of State jurisdiction.
The plea of arbitration constitutes a procedural plea.