In arbitration clauses contained in the constitutive instruments of companies, the appointment of arbitrators must be made by a person who is not connected with the company, in accordance with the rule laid down in Article 34(2) of Legislative Decree No 5 of 2003 and now incorporated in Article 838-bis(2) of the Code of Civil Procedure, the breach of which is expressly sanctioned by nullity.
The rule requiring the independence of the person appointing the arbitrators applies both to arbitration clauses providing for arbitration and to those providing for contractual arbitration (arbitrato irrituale), and also extends to partnerships.
In respect of statutory arbitration clauses introduced before the entry into force of Article 34 of Legislative Decree No 5 of 2003, the rule requiring the independence of the appointing authority brings about the supervening nullity or, in any event, the supervening ineffectiveness of a non-conforming clause.
The theory of the so-called dual track, according to which a corporate arbitration clause that does not comply with the rule requiring the independence of the appointing authority may be converted into a clause for ordinary arbitration, is unfounded.