An arbitration clause contained in a contract entered into for the operation of a business is automatically transferred to the assignee or transferee of the business pursuant to Article 2558 of the Civil Code, without the need for a specific assignment agreement or for writing ad substantiam, and the fiduciary character of the appointment of arbitrators does not serve to exclude such transfer, the arbitration clause not being among those contracts of a personal character excluded from the succession.
Contractual arbitration (arbitrato irrituale) has its source in a contract of mandate by which the parties instruct one or more persons to resolve a dispute; such mandate, being a contract ancillary to the carrying on of a business, does not assume a personal character and is transferred ipso iure upon the assignment or transfer of the business, in accordance with the general principles governing mandate and the succession of business contracts.
An award rendered in contractual arbitration (arbitrato irrituale), being a declaratory agreement concluded between the parties to the arbitral proceedings, is not enforceable against a third party who did not participate in the proceedings, by application of the principle of privity of contract set out in Article 1372 of the Civil Code, even where such third party is a particular successor in one of the substantive relationships that formed the subject-matter of the arbitral dispute.
The adversarial principle must also be observed in substantive terms in contractual arbitration (arbitrato irrituale) proceedings, and the relevant assessment cannot be confined to a verification of the formalities imposed by the arbitrators; rather, it must be established that the award is the result of the evaluation of defensive arguments and evidence upon which the parties had the opportunity to express their views and submit observations.
An award rendered in contractual arbitration (arbitrato irrituale), producing its substantive effects exclusively as between the parties, may be challenged only by a person who assumed that status in the proceedings in which the award was rendered, and not by third parties who did not formally participate in the arbitral proceedings.
An arbitration clause is an expression of the free contractual will of the parties, and its waiver requires a specific agreement to the contrary; a tacit waiver through conduct or through non-use of the clause over time is not permissible, nor may the mere commencement of court proceedings before the ordinary courts in lieu of arbitral proceedings constitute a general waiver of the clause.
The principle whereby the failure to raise the objection of arbitral jurisdiction precludes arbitral jurisdiction solely in respect of the dispute determined in those proceedings, as laid down in Article 819-ter(1) of the Code of Civil Procedure for institutional arbitration, is applicable as a provision expressing a general principle also to contractual arbitration (arbitrato irrituale), with the consequence that the failure to raise the objection in a single set of proceedings does not amount to a general waiver of the arbitration clause in respect of future disputes.