With regard to an arbitration clause contained in the articles of association of a cooperative company, the provision for the referral to arbitrators of disputes between members and the company does not entail the exclusion of the interim relief jurisdiction of the ordinary court where the arbitration agreement does not contain an express attribution to the arbitrators of the power to grant interim measures, given that, pursuant to the combined provisions of Articles 669-quinquies and 818 of the Code of Civil Procedure, as amended by the reform introduced by Legislative Decree No. 149/2022, the exclusive jurisdiction of arbitrators in interim relief matters presupposes a specific manifestation of the parties’ intention to that effect, expressed in the arbitration agreement or in a written instrument prior to the commencement of the arbitration proceedings.
Before the acceptance by the sole arbitrator or the constitution of the arbitral tribunal, the application for interim relief must be made to the competent court pursuant to Article 669-quinquies of the Code of Civil Procedure, in order to avoid the protection gap that would otherwise arise in the period between the submission of the arbitration claim and the formation of the arbitral body, in compliance with the principles of effectiveness of judicial protection and fair trial enshrined in Articles 24 and 111 of the Constitution.
Arbitration clauses in articles of association drafted before the entry into force of the reform introduced by Legislative Decree No. 149/2022, which merely refer to the discipline of corporate arbitration under Legislative Decree No. 5/2003 without expressly conferring upon arbitrators interim powers other than the suspension of shareholders’ resolutions, cannot be interpreted as conferring exclusive interim relief jurisdiction upon the arbitrators, with the consequence that the ordinary court retains jurisdiction for atypical interim measures.