An arbitration clause in the articles of association which entrusts the appointment of the arbitral body to the agreement of the parties, omitting the mandatory designation of a third party extraneous to the body of members to whom that appointment is to be entrusted, is void as being contrary to the mandatory regime of company arbitration.
The rule of appointment of the arbitrators by an outside party represents a principle of economic public policy, intended to guarantee the absolute impartiality of the adjudication in a field in which there coexist the interests not only of the contending parties, but also of third parties and of the market.
The special regime of company arbitration applies uniformly and exclusively to any arbitration clause inserted in articles of association, irrespective of the nature, arbitral or contractual, of the arbitration chosen, the parties being precluded from opting for a model of ordinary or contractual arbitration free from the limits imposed by that regime.
The subsidiary intervention of the President of the Court in the appointment of the arbitrator is provided for by statute solely in order to remedy the refusal or inaction of the third party designated by the articles of association and cannot in any way be substituted for an originally void clause so as to vest adjudicatory power in an arbitrator who has none; an order of appointment made on the premise of a void clause is itself radically vitiated and incapable of founding the arbitrators’ jurisdiction.
The nullity vitiating an arbitration clause in the articles of association for breach of the rule of appointment by an outside party is absolute in nature and affects public policy, and is not capable of any cure by conduct implying acceptance or by acquiescence of the parties; procedural conduct consisting in requesting the appointment and in subsequently taking part in the proceedings has neither the value of an objective novation nor the character of an autonomous and valid written arbitration agreement.
Once the nullity of the mechanism for appointing the arbitrators is established, it extends to the arbitration clause as a whole under art. 1419, co. 1, cod. civ., the matter concerning essential elements of the arbitration agreement without which the mechanism cannot operate, and any automatic supplementing of the clause under artt. 1419, co. 2, and 1339 cod. civ. is excluded, there being no mandatory rule of content in the legal order which would replace the parties’ will by inserting a predetermined third party.
Since the arbitration clause in the articles of association is radically void and devoid of effect from the outset, the arbitrator appointed is in a condition of total want of potestas iudicandi, with the consequent nullity of the entire proceedings conducted before him and of the award, including a contractual award, as the final and derivative act of a contractual chain vitiated at its root.
In proceedings whose subject-matter is exclusively the grounds of challenge to an arbitral award, a claim by which the defendant introduces new claims against a third party extraneous to the contractual relationship and unconnected with the subject-matter of the proceedings is inadmissible.