The distinguishing criterion between institutional arbitration and contractual arbitration (arbitrato irrituale) lies in the fact that in institutional arbitration the parties intend to obtain an award capable of being rendered enforceable and of producing the effects referred to in Article 825 of the Code of Civil Procedure, whereas in contractual arbitration (arbitrato irrituale) they entrust to the arbitrator the resolution of the dispute by means of a contractual instrument, such as an amicable composition or declaratory agreement attributable to their will.
For the purposes of the distinction between institutional arbitration and contractual arbitration (arbitrato irrituale), the arbitration clause must be construed by reference to its literal wording, the common intention of the parties, and their overall conduct, giving weight to terminological expressions consistent with the activity of adjudicating and with the outcome of a judgment in respect of a dispute, without the absence of any reference to the formalities of institutional arbitration, the conferral of powers of decision ex aequo et bono, the provision for finality, or the dispensation from procedural formalities being treated as conclusive evidence of an intention to adopt contractual arbitration (arbitrato irrituale).
Any doubt as to the interpretation of the true intention of the contracting parties regarding the nature of the arbitration agreement must be resolved in favour of institutional arbitration, having regard to the exceptional nature of any derogation from the rule that the award has the effect of a court judgment.
The special procedure for the determination of the fees and expenses of arbitrators provided for by Article 814 of the Code of Civil Procedure in respect of institutional arbitration is not applicable, even by analogy, to contractual arbitration (arbitrato irrituale).
In consensual arbitration, the secretary of the arbitral tribunal is appointed directly by the members of the tribunal on the basis of their assessment of the need to avail themselves of an assistant for the performance of certifying, executive, and organisational activities, thereby establishing with those members a relationship of engagement for intellectual services that is separate from the relationship between the disputing parties and the arbitrators, so that the amount of the expense for the secretary, being a disbursement for the functioning of the tribunal, may be assessed only in favour of the arbitrators and not directly in favour of the secretary.
The duties of assistance performed by the secretary of the arbitral tribunal, although relevant for the purposes of determining reimbursable expenses, do not permit the secretary’s participation in the special procedure under Article 814 of the Code of Civil Procedure, which reserves to the arbitrators alone the right to apply to the president of the court.
The fees payable to arbitrators who are members of the Bar must be assessed on the basis of the professional legal tariff, without the president of the court conducting the assessment being entitled to have recourse to equitable criteria.
The assessment of general expenses in favour of the arbitrators requires the application of Article 814 of the Code of Civil Procedure by reference solely to expenses actually incurred and capable of being documented, without the principles governing professional legal tariffs as regards lump-sum expenses being applicable, given that the arbitrator is not entirely to be equated with a practising member of the Bar having regard to the distinctive nature of the work respectively performed.