An arbitration clause contained in company articles of association is null and void when it fails to provide, in breach of Article 34, paragraph 2, of Legislative Decree No. 5/2003, that the appointment of arbitrators shall be made by a person external to the company, even where it contemplates the intervention of the President of the Court only on a residual and supplementary basis for the appointment of the third arbitrator, whilst the appointment of the other two members of the tribunal remains with the shareholders.
Article 34, paragraph 2, of Legislative Decree No. 5/2003 results in the supervening nullity of a statutory arbitration clause that does not comply with its requirements even where such clause was stipulated before the legislation came into force and was not subsequently brought into conformity, such nullity being capable of being raised by the court of its own motion.
An arbitration clause that is null and void for breach of Article 34 of Legislative Decree No. 5/2003 cannot be converted from a clause for intra-company arbitration into a clause for ordinary arbitration through the substitutive mechanism provided by Article 809 of the Code of Civil Procedure, given that the nullity is prescribed in order to safeguard the public policy principle of impartiality in arbitral decisions.