An arbitration clause contained in the articles of association of a limited liability company (società a responsabilità limitata) is affected by nullity, which may be raised by the court of its own motion, pursuant to Article 34(2) of Legislative Decree No. 5 of 17 January 2003 (now Article 838-bis(2) of the Code of Civil Procedure), where it does not provide for the appointment of arbitrators by a person unconnected with the company, but leaves such appointment to the parties themselves, each party designating one arbitrator and the third arbitrator, as chair of the tribunal, being chosen by agreement between the first two or, in the event of disagreement, by the President of the Court. Such nullity applies also in the case of contractual arbitration (arbitrato irrituale).
The rule of validity of the arbitration agreement requiring the appointment of the entire arbitral body by a third party unconnected with the company is mandatory in nature and cannot be derogated from by the parties.
The challenge to the report on the company’s financial position referred to in Articles 2482-bis and 2482-ter of the Civil Code, which is equivalent in structure and function to that provided for by Article 2446 of the Civil Code for joint-stock companies (società per azioni), insofar as it concerns the breach of the principles of clarity and accuracy in the preparation of such report, cannot be referred to arbitrators by virtue of an arbitration clause contained in the articles of association.