Article 806 of the Italian Civil Procedure Code states that parties may generally refer disputes to arbitration, provided that the subject matter of the dispute is capable of resolution by private agreement.
The wide terms of Article 806 have been debated by academics and the judiciary alike with reference to disputes concerning resolutions of shareholder meetings. The resultant case law provides that disputes concerning resolutions which involve the company's interests, the collective interests of the shareholders or those of third parties cannot be resolved by means of arbitration and must be settled by the courts. However, disputes over resolutions that affect an individual shareholder's rights can be referred to arbitration.
In accordance with these criteria, the Italian courts have stated that a dispute regarding the annulment of a company resolution approving the annual balance sheet cannot be subject to arbitration, even if an arbitration clause is included in the company's articles of association.1 The decision is based on the fact that the rules on the balance sheet aim to protect not only the interests of the shareholders, but also those of the company itself and of third parties. Few lower court decisions seem to take the opposite position.2
The same reasoning has led Italian courts to rule that disputes over shareholder meeting resolutions on the following issues cannot be resolved by means of arbitration:
- increases or reductions in share capital;
- the dissolution or winding-up of the company;3 and
- directors fees.4
Conversely, disputes over shareholders' voting rights and their right to participate in the shareholders meeting are generally deemed to be capable of resolution by arbitration, since they involve only the interests of individual shareholders.5 Resolutions on the expulsion of a company member can also be validly referred to arbitration, according to the Italian courts.6 As a consequence, arbitration clauses included in the articles of association which cover all disputes that may arise between shareholders, and between the company and one or more shareholders, are considered to include these matters.
Some issues are still controversial. For example, the arbitrability of shareholder meeting resolutions on the disqualification of directors is confirmed in some decisions,7 but rejected in others.8 Also, disputes which refer to the achievement of a necessary quorum are deemed to be capable of resolution by arbitration according to some decisions,9 and unsuitable for resolution by arbitration according to others.10
Some clarification on these issues may be provided by the forthcoming reforms to Italian company law.
(1) Court of Appeal of Milan, February 11 1997, published in Le Società, 1997, 1149.
(2) See, for example, Tribunal of Milan, January 10 2000, published in Giur it, 2000, 1239.
(3) Tribunal of Padua, January 18 1996, published in Le Società, 1986, 1092.
(4) Cassazione, March 30 1998, 3332 published in Mass Foro it, 1998, 351.
(5) Tribunal of Milan, October 3 1996, published in Le Società, 1997, 305.
(6) Cassazione, November 12 1998, 11436.
(7) Tribunal of Genoa, January 25 1982, published in Giur Comm, 1982, II, 684.
(8) Tribunal of Trieste 1990, December 12 1990, published in Le Società 1991, 818.
(9) Tribunal of Milan, May 18 1995, published in Le Società, 1995, 1609.
(10) Tribunal of Naples, March 30 1988, in Dir Fall, 1989, II, 490.
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