The arbitration clause is the agreement by which the parties undertake in advance to refer to arbitrators the disputes relating to the relationship in which the stipulation is inserted, thereby removing them from the cognisance of the ordinary courts; the referral of the dispute to arbitrators amounts to a waiver of recourse to judicial proceedings and of the jurisdiction of the State in favour of an instrument of a private-law nature.
The characterisation of an instrument as an award depends not on the nomen adopted by the parties or by the arbitrator, but on its substance and on compliance with the minimum formalities laid down by art. 823 cod. proc. civ., so that a determination made by the arbitrator of his own initiative, in the absence of any request by the parties and without the parties first being heard, does not constitute an award but a mere opinion devoid of legal relevance or a proposal for settlement.
A contractual expert determination (perizia contrattuale) takes on the nature of contractual arbitration (arbitrato irrituale) only where its content falls within art. 808-ter cod. proc. civ. and provides for a definitive waiver by the parties of the exercise of their rights before the ordinary courts; absent such waiver it constitutes an atypical arrangement of a merely obligatory nature, which does not preclude judicial proceedings.
A party’s withdrawal from the contract in which the arbitration clause is inserted does not affect the clause itself, which binds the contracting parties irreversibly to the referral of future disputes to arbitrators and cannot be unilaterally discarded.