The distinction between institutional arbitration and contractual arbitration (arbitrato irrituale) is not based on the circumstance that only in the former the parties have delegated to the arbitrators a function substituting that of the judge, renouncing state jurisdiction, but rather on the fact that in institutional arbitration the parties intend to obtain an award capable of being rendered enforceable and of producing the effects referred to in Article 825 of the Code of Civil Procedure, whereas in contractual arbitration they entrust to the arbitrator the resolution of the dispute through a contractual instrument, by means of an amicable settlement or a determination agreement attributable to their autonomy, undertaking to consider the arbitral decision as an expression of their own contractual will.
For the purposes of qualifying the nature of the arbitration, the interpreter must proceed according to the hermeneutic canons set out in Articles 1362 et seq. of the Civil Code, giving prevalence to the literal meaning of the arbitration clause where clear and unequivocal; only in case of ambiguity of the textual data does the principle of favour towards institutional arbitration apply, as a merely subsidiary criterion.
Symptomatic indicators of the contractual nature of the arbitration include: express reference to the decision “in contractual form” and “according to equity”; the absence of references to procedural or substantive rules of law; the devolution to the arbitrators of the determination of the allocation of costs; the lack of provision for means of appeal; the agreement whereby the arbitral determinations shall be binding and irrevocable between the parties, equivalent to a transaction concluded in the exercise of their private autonomy.
The plea of arbitration agreement relating to a contractual arbitration clause does not concern jurisdiction, but rather constitutes a preliminary question on the merits, the agreement for contractual arbitration being configured as a waiver of judicial protection in view of a resolution by decision having a contractual nature; it follows that, in case of acceptance, the judge must pronounce a judgment declaring the proceedings inadmissible and not an order declining jurisdiction.
The erroneous qualification of the plea of contractual arbitration as a plea of lack of jurisdiction does not result in its inadmissibility or rejection, provided that the party raising the plea has formally manifested the intention to rely on the arbitration clause within the time limits prescribed by law, the judge retaining the power and duty to requalify the legal nature of the question.
Article 36 of Legislative Decree No. 5/2003 (now Article 838-quater of the Code of Civil Procedure), insofar as it imposes decision according to law and the appealability of the award, does not prohibit in general terms the arbitrability by contractual arbitration of corporate disputes, but sets a limit to equitable decision confined solely to non-arbitrable matters and to those concerning the validity of shareholders’ resolutions; outside such cases, contractual arbitration pursuant to a statutory arbitration clause must be considered admissible.
A statutory arbitration clause providing for contractual arbitration is binding on the company and on all shareholders, including those whose status as shareholder is the subject of the dispute, pursuant to Article 34, paragraph 3, of Legislative Decree No. 5/2003 (now Article 838-bis, paragraph 3, of the Code of Civil Procedure); it follows that a dispute between a company and a withdrawing shareholder, concerning the determination of the lawfulness of the withdrawal and the liquidation of the shareholding, falls within the scope of application of the clause as it relates to corporate relationships and available rights.