An arbitration clause providing for the referral of disputes to arbitrators “in the manner and forms prescribed by law”, without further specification or reference to specific rules, is incapable of identifying the procedural rules of the chosen arbitration procedure and of manifesting with certainty the parties’ intention to derogate from State jurisdiction, within the meaning of Article 808 of the Code of Civil Procedure.
An arbitration clause that does not make it possible to identify whether the parties intended to have recourse to institutional arbitration, as a substitute for State jurisdiction resulting in an award having the effect of a judgment, or to contractual arbitration (arbitrato irrituale), as a binding contractual determination, must be interpreted as establishing a mechanism for out-of-court dispute resolution that does not replace State jurisdiction.
A clause that merely provides for the parties’ commitment to have recourse to the arbitral procedure, without binding them on a mandatory basis, does not prevent the parties from protecting their interests directly before the ordinary courts.