EXTRACT FROM ORDINANCE NO. 19907 OF 2009 ISSUED BY THE EXAMINING MAGISTRATE GIUSEPPE DI SALVO OF SECTION III OF THE CIVIL COURT OF ROME
On the subject concerning the use of Arbitrator panels within associations I have the pleasure of sharing with you some reflections and I’m bringing them to your attention and hope may contribute to our company.
Firstly to define the framework which we are considering, it’s worth remembering that the panels of Arbitrators, were established on the French and Belgian model. Already a commission of inquiry, appointed February 3, 1878 to research the causes of frequent strikes, submitted a report requesting the incorporation of the panels of arbitrators. Only with the law January 15, 1893 n. 293 the new body was established. This act foresaw the nomination, to be made with a royal decree, on the proposal of the ministers of justice and of agriculture and commerce panels of arbitrators for dispute settlement that occur between employers and employees or between laborers, in places where there existed plants or factories, for every industry or group of related industries. These panels were to be equal, and composed of not only a chairman appointed by people outside the relevant companies, it is selected among officials of the judicial order or between persons eligible for the office of mediator, an equal number of industrialists and employees elected by the members of these two categories, the total number not less than ten nor more than twenty.
Thinking now in current terms, and though always with the present that we are now confronting, I think it is interesting to take a look back on the order of the Court of Rome with which a group of people in a trade union demanded an appeal pursuant to article 700 et seq. the declaration of illegality of the deliberations and the activities carried out by a new and alleged if not non- existent General Council of sector trade unions organized on a small town and regional basis. The requests of the applicants were aimed at achieving the suspension, pursuant to article 23 paragraph 3 cc of the effects of the resolutions adopted in violation of statutory articles of the symbol of statutory auditors journal of the sector . It was also required the receivership of the committee of the General Secretary of the sector. Here it is identified as two sector s, the local and regional, whose existence was specifically challenged, had it been invoked, for the resolution of the dispute of its own statutory article of the main sector, which reunites to the Board of Arbiters the disputes among members and trade union unions and decisions on appeals against the violations of the statutory regulations as well as regarding electoral disputes.
On this specific point the ordinance underlines how the clause that assigns in the court of arbitration, internal committee of associates, to settle any disputes which arise between members and the organization is considered affected by invalidity as it would not provide the assurance necessary for the member in light of the appointment of the arbitrators. This specific point it is possible to compare the decision by the Supreme Court on 7 March 2001 with the judgment n. 3316 and July 21, 2000 with the judgment n. 9565. In the first of the two judgments, the Supreme Court had reiterated that the arbitration clause contained in the statute of a cooperative, that denouncing any dispute between the latter and the shareholders to the knowledge of a college of Arbiters, without providing for their appointment is required unanimous consensus, is affected by void except in the case of accession also at a later stage of the member concerned. In the second part, the Supreme Court affirmed the principle according to which is indicated above and voids the arbitration clause of the cooperative statute that allocates the disputes between the company and its partners to the arbitration (also disputed) of a panel of arbitrators appointed by the shareholders’ meeting, except that it is the express statutory provision in this sense, the arbitrators have been appointed by all the members unanimously. Without providing for the designation on the part of the shareholder in lite, which descends from the principle of equality of the parties in the appointment of arbitrators (see Cass. n. 2304/95, op. cit. ). The arbiters are as a rule are appointed by the assembly, and this is already enough to make it problematic for them, to arbitrate, in a dispute to which the company is part of, because even if you don’t want to put into question the impartiality of functional arbiters, themselves, it would not be the third party that appointed them: the committee is in fact, undoubtedly, a party of the society, and the Company is a party to the dispute.
In conclusion, I hope that my brief considerations can be considered useful to the debate within our association on one of the most important aspects of every associative reality.
Thinking now in current terms, and though always with the present that we are now confronting, I think it is interesting to take a look back on the order of the Court of Rome with which a group of people in a trade union demanded an appeal pursuant to article 700 et seq. the declaration of illegality of the deliberations and the activities carried out by a new and alleged if not non- existent General Council of sector trade unions organized on a small town and regional basis. The requests of the applicants were aimed at achieving the suspension, pursuant to article 23 paragraph 3 cc of the effects of the resolutions adopted in violation of statutory articles of the symbol of statutory auditors journal of the sector . It was also required the receivership of the committee of the General Secretary of the sector. Here it is identified as two sector s, the local and regional, whose existence was specifically challenged, had it been invoked, for the resolution of the dispute of its own statutory article of the main sector, which reunites to the Board of Arbiters the disputes among members and trade union unions and decisions on appeals against the violations of the statutory regulations as well as regarding electoral disputes.
On this specific point the ordinance underlines how the clause that assigns in the court of arbitration, internal committee of associates, to settle any disputes which arise between members and the organization is considered affected by invalidity as it would not provide the assurance necessary for the member in light of the appointment of the arbitrators. This specific point it is possible to compare the decision by the Supreme Court on 7 March 2001 with the judgment n. 3316 and July 21, 2000 with the judgment n. 9565. In the first of the two judgments, the Supreme Court had reiterated that the arbitration clause contained in the statute of a cooperative, that denouncing any dispute between the latter and the shareholders to the knowledge of a college of Arbiters, without providing for their appointment is required unanimous consensus, is affected by void except in the case of accession also at a later stage of the member concerned. In the second part, the Supreme Court affirmed the principle according to which is indicated above and voids the arbitration clause of the cooperative statute that allocates the disputes between the company and its partners to the arbitration (also disputed) of a panel of arbitrators appointed by the shareholders’ meeting, except that it is the express statutory provision in this sense, the arbitrators have been appointed by all the members unanimously. Without providing for the designation on the part of the shareholder in lite, which descends from the principle of equality of the parties in the appointment of arbitrators (see Cass. n. 2304/95, op. cit. ). The arbiters are as a rule are appointed by the assembly, and this is already enough to make it problematic for them, to arbitrate, in a dispute to which the company is part of, because even if you don’t want to put into question the impartiality of functional arbiters, themselves, it would not be the third party that appointed them: the committee is in fact, undoubtedly, a party of the society, and the Company is a party to the dispute.
In conclusion, I hope that my brief considerations can be considered useful to the debate within our association on one of the most important aspects of every associative reality.
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