An objection based on an arbitration agreement relating to a clause for regular arbitration pertains to jurisdiction, since the activity of regular arbitrators must be recognised as having jurisdictional nature and being substitutive of the ordinary court, whilst an objection by which the existence of a clause for contractual arbitration (arbitrato irrituale) is alleged operates as a contestation of the admissibility of the claim and is characterised as a preliminary question pertaining to the merits to be resolved, in case of acceptance, by judgment rejecting the claim.
The distinction between regular arbitration and contractual arbitration (arbitrato irrituale) consists in the fact that in regular arbitration the parties desire the pronouncement of an award capable of being rendered executory and of producing the effects referred to in Article 325 of the Code of Civil Procedure according to the rules of arbitral proceedings, whilst in contractual arbitration (arbitrato irrituale) they intend to entrust to the arbitrator the resolution of disputes exclusively through the contractual instrument, by means of an amicable composition or a deed of ascertainment referable to the exercise of their own autonomy.
The interpretation of the intention of the parties expressed in the arbitration clause must be conducted by applying the contractual hermeneutic canons derivable from Articles 1362 et seq. of the Civil Code, operating with reference to the literal datum, to the common intention of the parties and to the overall conduct of the same, with the specification that the literal meaning, where clear and unequivocal, prevails over every other criterion and that only in case of ambiguity of the literal datum does the general principle of favor for regular arbitration come to the aid.
The jurisdiction of arbitrators, pursuant to Article 819-ter, paragraph 1, of the Code of Civil Procedure, is not excluded by the connection between the dispute referred to them and a cause pending before the court and, in the hypothesis where a plurality of claims has been advanced, the subsistence of arbitral jurisdiction must be verified with specific regard to each of them, it not being possible to devolve the entire dispute by virtue of the mere bond of connection.
The noting of the inexact legal qualification of the objection of contractual arbitration (arbitrato irrituale) formulated erroneously in terms of an objection of lack of jurisdiction, far from constituting cause for rejection or declaration of inadmissibility of the objection, is limited to triggering the power-duty of judicial requalification of the question prior to its examination, provided that the objection has been properly raised within the time limits prescribed by law and with the correct content.
Disputes in corporate matters may form the object of compromise with the exclusion of those having as their object interests of the company or concerning the violation of provisions placed for the protection of the collective interest of shareholders or of interests of third parties extraneous to the corporate structure, it being necessary to identify the criterion for distinguishing between available and unavailable rights not only in the imperative and mandatory nature of the provision placed for the protection of the interests in question, but also and above all in the necessity that the relative violation should determine a reaction of the legal order independent of any initiative by a specific legitimated party.