The distinguishing criterion between institutional arbitration and contractual arbitration (arbitrato irrituale) lies in the fact that, in the former, the parties seek the rendering of an award capable of being made enforceable pursuant to the rules of arbitral proceedings under Articles 806 et seq. of the Code of Civil Procedure, whereas in the latter they intend to entrust the arbitrator with the resolution of disputes by contractual means, through an amicable settlement or a declaratory agreement (negozio di accertamento) referable to the parties’ own will.
Where a party invited to appoint its arbitrator pursuant to Article 810(1) of the Code of Civil Procedure fails to do so, the other party bears the burden, in order to be able to bring a valid claim before the ordinary court, of applying to the President of the Court for the appointment of the missing arbitrator pursuant to Article 810(2) of the Code of Civil Procedure, failing which the judicial claim is inadmissible.
The existence of an arbitration clause does not preclude the issuance of an order for payment (decreto ingiuntivo), since the plea of arbitration is a defence in the strict sense that cannot be raised by the court of its own motion, and in the summary phase of the order for payment proceedings there is not yet a dispute characterised by adversarial proceedings capable of being referred to the arbitrators.
In proceedings by way of opposition to an order for payment, the plea of arbitration (exceptio compromissi) must be raised, on pain of preclusion, in the first pleading of the debtor who is the substantive respondent, and entails the declaration of nullity of the order for payment issued by the ordinary court lacking jurisdiction, with the contemporaneous referral of the dispute to arbitral proceedings, it being understood that the preservation of the effects of the claim brought before the court lacking jurisdiction is ensured by the translatio iudicii mechanism under Article 819-ter of the Code of Civil Procedure.