The statutory extension of the natural gas distribution concession, provided for by art. 14 co. 7 d.lgs. n. 164 of 2000, entails the continuation of the original concession agreement, albeit limited to ordinary management, with the maintenance of the obligation to pay the concession fee in the amount established by the original agreement, the concessionaire’s right to request the revision of the contractual terms pursuant to art. 165 co. 6 d.lgs. n. 50 of 2016, or, in the event of failure to reach agreement, to withdraw from the contract, being preserved. It follows that the arbitration clause contained in the original agreement retains its efficacy also during the period of statutory extension.
In the matter of the transfer of a branch of a business, pursuant to art. 2558 cod. civ., the transferee succeeds ipso iure also to the arbitration clause contained in a contract entered into by the transferor for the carrying on of the business, without the need for a specific agreement of assignment and without the written form ad substantiam being required, given the nature of the arbitration clause as a juridical act endowed with its own individuality and autonomy. This principle does not apply to the different case of the assignment of a claim, in which the assignee does not succeed to the ownership of the distinct and autonomous arbitration agreement.
The designation of arbitrators as amiable compositeurs in the arbitration clause is not sufficient, in the absence of further supporting and corroborating elements, to give rise to the conclusion that they were entrusted with the task of deciding according to equity, given the lack of coincidence between the status attributed to the adjudicators and the evaluative criterion which they were required to adopt. Where the arbitral award was rendered according to law rather than according to equity, as provided for in the arbitration clause, the party wishing to rely on such defect must bring a challenge for nullity pursuant to art. 829 co. 1 n. 4 cod. proc. civ., it being a ruling rendered outside the limits of the arbitration agreement. In the absence of a challenge on that point, res judicata is formed on the question of the nature of the arbitral proceedings, with the consequent preclusion for the Court of Appeal from raising of its own motion, pursuant to art. 101 cod. proc. civ., the characterisation of the arbitration as equitable.