A contractual expert determination (perizia contrattuale) consists of a clause whereby the parties entrust a third party, selected for his specific technical knowledge, withhe resolution of one or more factual questions relevant to the legal relationship between them, undertaking to be bound by his findings; it may take the nature of contractual arbitration (arbitrato irrituale) where its content falls within art. 808-ter cod. proc. civ. and provides for a definitive waiver by the parties of their right to pursue their claims before the ordinary courts; absent such a waiver, it constitutes an entirely atypical figure of a contractual nature.
A purely contractual expert determination (perizia contrattuale pura), which is merely contractually binding, does not preclude either party from bringing legal proceedings covering even the portion of the dispute entrusted to the expert; the exercise of the right effected by initiating the contractual expert determination procedure constitutes conduct incompatible with the inaction relevant to limitation, and produces an interrupting effect de die in diem throughout the course of the expert operations, until their conclusion or the expiry of the contractually agreed time-limit.
Contractual expert determination (perizia contrattuale) is distinguished from contractual arbitration (arbitrato irrituale) in that the third party in expert determination makes a purely technical finding (a statement of knowledge characterised by technical discretion) rather than a volitional and discretionary determination; furthermore, in expert determination the third party is called upon to resolve questions of fact, whereas in contractual arbitration (arbitrato irrituale) he is called upon to resolve a legal dispute concerning the relationship as a whole.
Where the parties to an insurance contract entrust a third party with the task of expressing a technical assessment of the extent of the consequences of an event to which the payment of the indemnity is linked, undertaking to regard that assessment as mutually binding and excluding from the third party’s powers the resolution of questions concerning the validity and effectiveness of the insurance cover, the arrangement falls outside both the arbitraggio and arbitration (ritual or contractual) and constitutes a contractual expert determination (perizia contrattuale), to which the rules governing arbitration do not apply.
Where an expert determination clause contains no express provision as to the professional qualifications required of the experts, the parties’ intention must be construed under arts. 1362 et seq. cod. civ. as implicitly requiring that all members of the panel — including the third expert — possesequate technical expertise in relation to the subject-matter of the appointment; the appointment of an expert lacking such technical competence constitutes a ground of invalidity of the contractual expert determination. Since a purely contractual expert determination falls outside both the arbitraggio and arbitration, any objection to the composition of the panel need not be raised in the forms prescribed by arts. 812 and 817 cod. proc. civ.