Following the reform of the law of arbitration effected by Legislative Decree No. 40 of 2 March 2006, the question of the attribution of the potestas iudicandi to the arbitrators, raised before the ordinary court, constitutes a question of competence within the meaning of Article 819-ter of the Code of Civil Procedure, and not a question of jurisdiction.
Judgments that decide, in the affirmative or in the negative, on jurisdiction in relation to an arbitration agreement are challengeable exclusively by way of a mandatory application for a ruling on competence (regolamento necessario di competenza) pursuant to Article 819-ter of the Code of Civil Procedure, to the exclusion of appeal, where rendered after the coming into force of Legislative Decree No. 40 of 2006 and where the dispute concerns the referral of the case to the national court rather than to an Italian arbitrator.
For the purposes of distinguishing between institutional arbitration and contractual arbitration (arbitrato irrituale), neither the conferral on the arbitrators of the power to decide ex aequo et bono, nor the provision that the award is not subject to appeal, nor the exemption from procedural formalities, constitute decisive elements in favour of contractual arbitration (arbitrato irrituale); instead, weight must be given to terminological expressions consistent with the activity of adjudicating and the result of a judgment on a dispute, through the interpretation of the arbitration clause by reference to its wording, the common intention of the parties and their overall conduct.
In the event of doubt as to the interpretation of the actual intention of the contracting parties with regard to the nature of the arbitration, the arbitration must be held to be institutional, in view of the exceptional nature of the derogation from the rule that an award has the effect of a court judgment and of the greater safeguards afforded by institutional arbitration in terms of the enforceability of the award and the regime of challenges, unless there are certain elements to support the conclusion that the arbitration was intended as a means of amicable settlement.