The arbitrability of disputes is the rule, whilst non-arbitrability constitutes the exception pursuant to Article 806 of the Code of Civil Procedure. Non-arbitrability occurs when the dispute has as its object unavailable rights or when an express prohibitive provision stands in the way of arbitrability. The area of susceptibility to arbitration coincides with that of the availability of rights.
The susceptibility to arbitration of the challenge of corporate resolutions having as their object operations on share capital is subordinated to the verification that the corresponding dispute does not affect, in a direct and not merely mediate manner, interests protected by mandatory provisions, the violation of which determines a reaction of the legal order independent of any initiative by a party.
The supra-individual interest of the company, of the shareholders or of third parties, in order to exclude the scope of susceptibility of the dispute to compromise, must be directly involved by the object of the proceedings. The "corporate" or "collective" nature of the interest does not operate to exclude the referability of the dispute to arbitral judgment, since such character denotes only that the interest is withdrawn from the individual will of single shareholders, but does not imply like consequence in respect of the "collective" will expressed by the company.
The availability of rights must be measured in relation to the right which is the object of the dispute, and not to the questions which the arbitrators must resolve with a view to the decision, capable of being addressed with effects incidenter tantum. Arbitrators are bound to suspend arbitral proceedings only if there arises a preliminary question on a matter which cannot be the object of an arbitration agreement and which by law must be decided with the authority of res judicata pursuant to Article 819-bis, paragraph 1, number 2, of the Code of Civil Procedure.