In contractual arbitration (arbitrato irrituale), the parties do not entrust to the arbitrators the exercise of a function of a jurisdictional nature, but confer upon them a mandate for the performance, on their behalf, of a contractual activity, constituting a means of contractual resolution of disputes that have arisen or may arise between the parties in respect of specified legal relationships, based on the entrusting to third parties of the task of seeking an amicable, conciliatory, or transactional composition.
An institutional arbitral award has the character of a jurisdictional decision and the effect of an enforceable instrument, whereas an award in contractual arbitration (arbitrato irrituale) has the contractual character of a declaratory agreement and lacks enforceable effect.
Both institutional arbitral awards and awards in contractual arbitration (arbitrato irrituale) constitute decisions adopted by the arbitrators for the resolution of a dispute that has arisen between the parties, which aim to ascertain, and not to constitute, the respective obligations and rights.
An award in contractual arbitration (arbitrato irrituale) does not have the effect of novating the parties’ prior obligations, unless this is expressly provided for in the arbitration clause, and does not replace the title of the rights in dispute, operating as a novation only where there is an express intention to extinguish the prior positions and to substitute therefor other autonomous and distinct ones.