The Court of Cassation recently ruled on the conferment of a company dispute to the jurisdiction of arbitration proceedings based on the arbitration clause contained in the company's articles of association.(1)
The claimants commenced an action before the arbitral tribunal as shareholders of a company. They claimed liability of the company's directors and statutory auditor for violation of their legal obligations and the company's articles of association.
The tribunal accepted the exception raised by the counterparties concerning its lack of jurisdiction, as Article 41 of the articles of association expressly stated that:
"1. Any disputes between shareholders or between the Company and the shareholders regarding disposable rights could be decided by a Panel of 3 arbitrators.
2. The Arbitrators will be appointed on demand of the more diligent party by the President of Tribunal of Pesaro and decide without procedural formalities. This provision is mandatory for the company and for all the shareholders.
3. The disputes commenced by or against directors, auditors and liquidators are referred to arbitral proceedings, according to the above mentioned procedures, and the proceedings after the acceptation are mandatory for them."
The claimants appealed the decision before the Court of Cassation.
The court found that the abovementioned clause had been interpreted not only in terms of its literal meaning, but also according to other parameters concerning logic and systematic order, which had helped to reveal the real will of the parties according to Article 1362 of the Civil Code.
The court also underlined that Article 41 of the articles of association reproduced Article 34 of Legislative Decree 5/2003, albeit with a difference regarding disputes commenced by or against directors, auditors and liquidators which, according to Article 41, must be referred to arbitral proceedings.
Further, the court rejected the second reason of appeal invoked by the claimants concerning the violation of the limit of non-disposable rights – a prerequisite of the arbitral panel's jurisdiction – on the basis that the dispute concerned the invalidity of annual balance sheets.
Regarding this point, the court affirmed that the demand did not concern the validity of the balance sheets, but the liability of the directors following the violation of their statutory duties.
In view of the above and given the fact that the dispute concerned disposable rights, the court found that there were no limits to its arbitrability and confirmed the arbitration panel's jurisdiction.
For further information on this topic please contact Costanza Mariconda at Mariconda e Associati by telephone (+39 02 795 212) or email ([email protected]). The Mariconda e Associati website can be accessed at www.studiomariconda.com.
Endnotes
(1) Court of Cassation, Decision 26300, November 6 2017.
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