The arbitration clause contained in the articles of association of a limited liability company does not apply to challenges of shareholders’ resolutions based on the alleged breach of Article 2466, paragraph 4, of the Civil Code, which prohibits a member in default from participating in shareholders’ decisions. This is a mandatory and non-derogable rule intended to protect the effectiveness of capital contributions in the interest not only of the members and the company, but also of third-party creditors. Consequently, the dispute does not concern available rights relating to the corporate relationship and cannot be referred to arbitrators pursuant to Article 34, paragraph 1, of Legislative Decree 5/2003.
For the purpose of determining the arbitrability of corporate disputes, a distinction must be drawn between the mandatory nature of the rules that arbitrators must apply and the unavailability of the disputed right. Arbitrability is excluded only when, based on the parties’ submissions, the dispute concerns interests protected by mandatory rules whose breach triggers a reaction by the legal system independent of party initiative, as in cases of nullity that can be raised of the court’s own motion, cannot be remedied and are not subject to limitation, or in cases of breach of rules intended to protect third parties external to the company.
Disputes concerning challenges of shareholders’ resolutions for breach of mandatory rules designed to ensure the clarity and accuracy of financial statements pursuant to Article 2423 of the Civil Code are not arbitrable, since such rules protect not only the interests of the members but also the reliance of third parties and the collective interest, thereby triggering a reaction by the legal system independent of party initiative.
The derivative action brought by a member against a director pursuant to Article 2476 of the Civil Code does not fall within the scope of application of a statutory arbitration clause providing for the referral to arbitrators of disputes in which the parties are members or members and the company, given that such wording is not capable of encompassing disputes involving a director, it being irrelevant that the latter also holds the status of member.