A clause compromissoria referring all disputes arising from a contract for professional services to arbitration encompasses, by virtue of the interpretive canon in art. 808 quater cod. proc. civ., not only disputes concerning the principal services forming the contract’s subject matter but also those concerning ancillary or contingent services expressly provided for in clauses of the same contract, where no separate agreement has been concluded for such additional services.
Where a clause compromissoria is broadly worded (‘all disputes’), the exception founded upon it goes to the potestas iudicandi of the ordinary court and, as a preliminary matter, absorbs every other procedural and substantive question, including the admissibility of the claim for failure to undergo the mandatory assisted negotiation procedure.
The lodging, by a defendant in the same statement of defence, of both an exception of arbitration and a counterclaim does not in itself constitute a tacit waiver of that exception; the counterclaim must be treated as brought in the alternative, subject to the dismissal of the arbitration exception, with the consequence that, if the exception is upheld, the ordinary court is precluded from determining both the principal claim and the counterclaim.
A clause compromissoria covering disputes arising from the interpretation and performance of a contract encompasses within its scope a claim for damages for non-performance, which, like a claim for termination, relates to the performance stage of the contract and requires a determination of the parties’ failure to fulfil their assumed obligations.