Art. 34 of legislative decree No. 5/2003 permits the articles of association of companies, with the exception of those which have recourse to the risk capital market, to provide by way of arbitration clauses for the referral to arbitrators of disputes between members and the company concerning disposable rights relating to the corporate relationship. The clause is binding on the company and on all members, including those whose status as meber is the subject of the dispute.
Pursuant to art. 808 quater of the Code of Civil Procedure, where there is doubt as to the scope of an arbitration clause contained in a company’s articles of association, the arbitration agreement must be broadly construed, in the sense that the arbitrators’ jurisdiction extends to all disputes relating to claims whose causa petendi lies in the contract to which the clause is annexed, including questions concerning its interpretation.
In the case of contractual arbitration (arbitrato irrituale), the acceptance of the plea of arbitration results in a ruling that the claim is inadmissible, rather than a ruling of lack of jurisdiction, as the issue pertains to the merits and not to questions of jurisdiction.
An arbitration clause in a company’s articles of association is not void for lack of independence of the person entrusted with selecting the arbitrators where that person is the President of the Chamber of Commerce in whose territorial district the company has its registered office, since the concept of externality of the appointing authority must be referred to the corporate organisation and may not be extended to a form of ideological neutrality.