Corporate Arbitration and Listed Companies: A Nice Couple in Capital Markets? The Case of Italy and a European Perspective

Abstract

Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading. Corporate Arbitration, Listed Companies, Intra-Corporate Disputes