An arbitration clause contained in a contract, whereby the parties refer future and potential disputes relating to the interpretation or performance of the contract itself to the jurisdiction of a foreign arbitral tribunal, constitutes a plea of lack of jurisdiction and is not ascertainable by the court of its own motion, given the essential voluntary nature of arbitration, by virtue of which the parties, even in the presence of such a clause, may always by mutual agreement opt for a decision by the ordinary courts, even tacitly, through the institution of ordinary proceedings to which corresponds the failure to raise the plea of arbitration agreement.
Pursuant to Article 4, paragraph 2, of Law No. 218/1995, the contractual derogation from Italian jurisdiction in favour of foreign arbitration requires written proof and that the case concerns available rights. This formal requirement may be deemed satisfied by the conduct of the parties by implication, where there is operative, in the sector of international trade in which they operate, a usage by virtue of which such conduct is considered suitable to establish the parties’ intention to refer the dispute to arbitrators.
Conduct by implication for the purposes of written proof of an agreement for the referral of disputes to foreign arbitration, pursuant to Article 4 of Law No. 218/1995, includes the continuation of contractual relations in which the invoices and correspondence of one party, containing reference to general conditions including the arbitration clause, have been received without objection by the other party.