A statutory arbitration clause that does not provide for the appointment of the arbitrators by a person unconnected with the company is void as contrary to mandatory law, even where it refers to contractual arbitration (arbitrato irrituale), the distinction between institutional arbitration and contractual arbitration (arbitrato irrituale) being inapplicable, since the nullity is intended to safeguard the public policy principle of impartiality of the decision.
A statutory arbitration clause for contractual arbitration (arbitrato irrituale) that entrusts the appointment of the arbitrators to a person unconnected with the company but does not comply with Article 34 of Legislative Decree No. 5/2003, where entered into before its coming into force, is affected by supervening nullity that may be raised of the court's own motion, the rules on corporate arbitration not being capable of being regarded as superseded by the transitional provisions.
An arbitration clause for contractual arbitration (arbitrato irrituale) inserted in the instrument of incorporation that provides for the appointment of arbitrators by the parties themselves, rather than by a previously designated third party, must be regarded as having become ineffective, it not being possible to envisage partial integration of the provision affected by nullity where not contemplated by the legislature, on pain of distorting the parties' intention by imposing through integration arbitral appointments and a procedural model not foreseeable at the time the clause was introduced.