Once again the arbitrability of corporate disputes is under discussion
Legislative Decree 5/2003 provides that corporate disputes are also capable of arbitration through the arbitration clause present in the company’s bylaws, provided that – similarly to the general provision on arbitration incorporated in the Code of Civil Procedure – a dispute does not affect unavailable rights.
A recent ruling of the Court of Rome , R.G. n. 20401/2017, the metropolitan judges have clarified the conditions of arbitrability of the corporate disputes concerning the validity of resolutions of company’s general meetings. Following the steady orientation of the jurisprudence of legitimacy, the Court reiterated that the main criteria of the unavailability of the rights is fact that challenged resolution concerns those interests protected by mandatory rules, the violation of which determines a reaction of the legal system released from any initiative of the party.
The ruling in question specifies the concept of absolute lack of information that, exceptionally as a procedural defect, determines the voidness of the resolution pursuant to art. 2479-ter paragraph 3 Civil Code, and therefore it falls outside the arbitration clause.
In particular, it was highlighted that the rule in question exclusively refers to the procedure for convocation of the quotaholders’ general meeting, proposing in the discipline of the S.r.l. the remedy envisaged for the failure to call the shareholders’ meeting in the rules of the S.p.A., rather than to those violations of the board of directors that do not allow the quotaholders to attend the meeting in an informed and acknowledged manner.
The ruling in question is symptomatic of the fact that the jurisprudence of merit considers repelled the minority orientation of openness (however singular in the jurisprudential panorama) which, adopting a purely contractual approach in the identification of disputes capable of arbitration, did not make any distinction between individual/collective interests and the derogable/non-derogable nature of the violated norm.
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