The arbitration clause contained in the articles of association of a subject declared bankrupt is applicable to proceedings initiated by the trustee to assert rights pre-existing the insolvency procedure, unlike what occurs for the action of responsibility proposed by the same trustee against directors, being an action aimed at reintegrating the corporate patrimony in the interest of shareholders and creditors for whom the clause cannot operate being subjects third to the company.
The assignee of the bankruptcy composition who acts judicially to obtain payment of a sum already due to the bankrupt exercises an action found in the latter's patrimony, placing himself in the same substantial and procedural position, so that the third party sued may legitimately oppose all exceptions which he could have opposed to the bankrupt entrepreneur, including that of arbitration agreement.
The arbitration clause does not constitute an accessory of the contract in which it is inserted, but has its own individuality and autonomy clearly distinct from that of the contract to which it accedes, so that the causes of invalidity of the substantial transaction do not extend to it. The invalidity or even termination of the contract in whose contractual provisions the arbitration clause is inserted does not vitiate the validity and efficacy of the latter for deciding disputes arising from the execution of that contract.
In the case of an agreement containing an arbitration clause stipulated before the declaration of bankruptcy of one of the parties, the mandate conferred on arbitrators is not subject to the sanction of dissolution provided by Article 78 of the Bankruptcy Law (now Article 97 of the Business Crisis Code), being configured as a transactional act referable to the institution of collective mandate and that conferred also in the interest of third parties.
The existence of an arbitration clause does not exclude the jurisdiction of the ordinary judge to issue an injunctive decree but imposes upon the latter, in case of subsequent opposition based on the existence of said clause, the declaration of nullity of the opposed decree and simultaneous remission of the dispute to the judgment of arbitrators.