Article 838-ter of the Code of Civil Procedure, which attributes to arbitrators cautionary power in disputes devolved to arbitration concerning the validity of assembly deliberations, does not apply ratione materiae to council deliberations, for which application of the relative arbitral cautionary discipline remains excluded.
Article 818, paragraph 1, of the Code of Civil Procedure, in the formulation amended by the Cartabia reform, subordinates exercise of cautionary power by arbitrators to the presence of an explicit provision contained in the arbitration agreement or in a written act anterior to institution of arbitral proceedings. A simple statutory arbitration clause is not sufficient to establish such power in arbitrators if there is not a clear and express attribution of cautionary jurisdiction.
Pursuant to Article 818, paragraph 2, of the Code of Civil Procedure, before constitution of the arbitral tribunal, cautionary application may be proposed to the competent judge pursuant to Article 669-quinquies of the Code of Civil Procedure. The Court retains functional and residual jurisdiction to adopt urgent cautionary measures, even in presence of arbitration clause, until the arbitral proceeding is not validly instituted.