Contractual arbitration (arbitrato irrituale) constitutes an instrument for the contractual resolution of disputes, based on entrusting third parties with the task of seeking an amicable, conciliatory and transactional settlement.
The determination of the objective scope of the arbitration clause, namely the identification of the disputes that the parties intended to submit to arbitrators, constitutes a question on the merits and not one of jurisdiction, the resolution of which requires the interpretation of the clause in accordance with the hermeneutic canons of the Civil Code governing the interpretation of contracts under Articles 1362 et seq. of the Civil Code, through an inquiry into the common intention of the parties as to the objective content attributed to the clause itself.
Where the literal meaning of the expressions used in the arbitration clause does not unequivocally lead to the identification of the common intention of the parties, the overall conduct of the parties must be assessed, including conduct subsequent to the conclusion of the contract, in order to ascertain whether there exists an irreconcilable incompatibility between a given course of conduct unequivocally directed towards the recognition of arbitral jurisdiction and the intention to avail oneself thereof.