Arbitration clauses in contracts between professional and consumer are presumed unfair pursuant to Article 33, paragraph 2, letter t), of Legislative Decree 206/2005, consisting as they do in a derogation from the jurisdiction of the judicial authority, save that it appears to have been the object of individual negotiation within the meaning of Article 34 of the same decree.
The burden of proving the existence of individualised negotiation on the arbitration clause falls upon the professional, whereas the consumer may confine himself to alleging the subsistence of the prerequisites for declaration of ineffectiveness of the clause itself.
To exclude the unfair character of an arbitration clause there must be serious, effective and individualised negotiation, which has had as its object all the clauses constituting the content of the agreement, taken into consideration individually as well as in the meaning deducible from the comprehensive tenor of the contract.
In the confrontation between the general discipline on arbitration and the special discipline for protection of the consumer, the judge must proceed to disapply Article 829, paragraph 2, of the Code of Civil Procedure, which prevents annulment of the award for objections not timeously raised in arbitration, when it is founded on the invalidity of the arbitration agreement by reason of the unfair character of the arbitration clause.
An arbitration award rendered on the basis of an arbitration clause contained in a contract between consumer and professional which has not formed the object of individual negotiation is annullable even if during the arbitration proceedings the unfair character thereof has not been raised as an objection, by reason of the power to raise of the court's own motion the abusive nature of the clause and of the special character of the discipline for protection of the consumer.