Public Administration cannot validly stipulate arbitration clauses providing for contractual arbitration (arbitrato irrituale), as such form of dispute resolution, entrusted to subjects identified without adequate guarantees of transparency and publicity, is incompatible with the requirement that administrative action must in any case be inspired by the protection of the public interest, even when the public body operates on a formally equal footing with private parties.
The determination of the institutional or contractual nature of arbitration must be carried out through interpretation of the arbitration clause according to the interpretative principles of Article 1362 of the Civil Code, with reference to the literal text, the common intention of the parties and their overall conduct, including conduct subsequent to the conclusion of the contract.
The contractual provision that arbitrators decide "amicably", when it is detached from any reference to applicable rules and does not contain specific regulation on the decision-making powers of arbitrators and on the methods of exercising their decision-making power, is indicative of the contractual nature of arbitration (arbitrato irrituale).