The distinguishing criterion between regular arbitration and contractual arbitration (arbitrato irrituale) consists in the fact that in regular arbitration the parties seek the pronouncement of an award capable of being rendered enforceable and of producing the effects referred to in Article 825 of the Code of Civil Procedure, whilst in contractual arbitration (arbitrato irrituale) they intend to entrust the arbitrator with the resolution of disputes solely through contractual instruments, by means of an amicable composition or an agreement of ascertainment referable to their own will.
For the purpose of determining whether the matter concerns regular or contractual arbitration (arbitrato irrituale), it is necessary to interpret the arbitration clause according to the normal hermeneutic principles derivable from Article 1362 of the Civil Code and to refer to the literal text, the common intention of the parties and their overall conduct, including conduct subsequent to the conclusion of the contract, without the failure to refer in the clause to the formalities of regular arbitration pointing unequivocally towards the contractual nature of the arbitration.
In matters of contractual arbitration (arbitrato irrituale), the devolution of the dispute to contractual arbitrators being configured as a waiver of the pursuit of judicial action and of state jurisdiction, the relative exception gives rise to a question on the merits concerning the interpretation and validity of the arbitration agreement or arbitration clause, and constitutes a proper exception in the strict sense having as its object the presentation of a fact preventing the exercise of state jurisdiction, with the consequence that it must be raised by the parties within the times and in the manner proper to exceptions on the merits.