A contractual clause providing for the resolution of disputes through a “fair amicable settlement” by means of mediation by a third party constitutes an arbitration clause, at least in the form of contractual arbitration (arbitrato irrituale) under Article 808-ter of the Code of Civil Procedure, insofar as it is aimed at achieving negotiated resolution of the dispute and implies the contracting parties’ waiver of judicial protection.
The conferment upon arbitrators of the power to decide as amiable compositeurs does not constitute a decisive element for identifying contractual arbitration (arbitrato irrituale), since parties may also authorise institutional arbitrators to decide according to equity.
An arbitration clause is not void for vagueness when the parties’ intention to refer to the arbitrator all disputes relating to the performance of the contract in which it is contained is evident.
The presence of an arbitration clause does not prevent seeking and obtaining from the ordinary court a decree for payment (decreto ingiuntivo) for credit arising from the contract, without prejudice to the defendant’s right to raise the objection of arbitral jurisdiction in opposition proceedings, with the consequent obligation for the judge hearing the opposition to revoke the decree for payment and refer the parties to the arbitrator.
Established arbitral jurisdiction prevents any ruling by the ordinary court on the merits of the dispute.