I limiti soggettivi di efficacia della clausola compromissoria inserita negli statuti societari

In this essay, the author examines the borders of effectiveness of the arbitral clause included in articles of association, considering particularly the special discipline of art. 34 d.lgs. 5/2003, which affirms its binding towards all partners, also those who have not negotiated the statute or memorandum of association and towards directors, liquidators and inspectors of the companies. The author remembers that in order of effectiveness of the arbitral clause a specific approval is considered as necessary by the largest part of the doctrine and jurisprudence, and that the consent of the parties is the foundation of arbitration and of its constitutional legitimacy; so it cannot be replaced by a simple legal prevision, without arousing doubts of illegitimacy and invalidity of the clause. Consequently, it is necessary that the effects affirmed by the indicated legal disposition correspond to the will of the parties, according to general civil law. In this perspective, the author examines the special rules of formation of the collettive will, and concludes in the sense that they are not applicable to the arbitral clause without determinating the violation of several rules of the Italian Constitution.