A derivative action for liability brought against the directors of a limited liability company pursuant to Article 2476 of the Civil Code may validly be the subject of an arbitration clause by virtue of Article 838-bis, paragraph 4, of the Code of Civil Procedure, the dispute concerning available patrimonial rights; however, the effectiveness of the clause depends upon its specific wording, a distinction being required between clauses which expressly include disputes “between the company and its directors” or disputes “brought against the directors”, which are fully applicable, and generic clauses concerning “corporate relations” or disputes “between shareholders”, which may not be sufficient to refer the liability action to arbitration, inasmuch as the corporate relationship in the proper sense is distinct from the organic relationship between a director and the company.
Disputes concerning challenges to shareholders’ resolutions on grounds of defects in the notice of meeting or in the constitution of the meeting concern available rights, giving rise to instances of voidability or curable nullity pursuant to Article 2379-bis of the Civil Code, and may therefore be validly referred to arbitral jurisdiction by means of a statutory arbitration clause which encompasses disputes concerning the validity of corporate acts or in any event relating to corporate relations.
An arbitration clause which provides that the arbitrator shall decide “according to equity and without procedural formalities” constitutes arbitration where the intention of the parties to confer upon the arbitrators a function substituting that of the courts may be inferred from the appointment mechanism entrusted to a third-party authority and from the subject-matter of the referral concerning the validity of corporate acts, given that the expressions relating to equity and the absence of formalities pertain to the rules of decision and not to the nature of the award.