The characterisation of the arbitration as contractual arbitration (arbitrato irrituale) bears upon the admissibility of a challenge to the award for nullity, since a contractual award is not subject to the regime of challenge laid down for an arbitral award by artt. 827 et seq. cod. proc. civ., but to contractual remedies, directed both to the validity of the arbitration agreement and to the arbitrators’ conduct, to be pursued in accordance with the ordinary rules on competence and with the principle of two tiers of jurisdiction.
A clause submitting the dispute to the determination of an arbitrator acting as an amiable compositeur, called upon to decide ex bono et aequo without procedural formalities and by a determination not open to appeal, together with the content of the request for arbitration, may point to the parties’ intention to institute a contractual arbitration (arbitrato irrituale) in the nature of a contractual expert determination (perizia contrattuale).
A contractual award, being incapable of being invested with executory force, is not open to challenge before the court of appeal, but must be made the subject of an action for annulment before the court of first instance, in compliance with the principle of two tiers of jurisdiction, on one of the grounds exhaustively listed in the second paragraph of art. 808-ter cod. proc. civ.