Regarding an arbitration clause contained in the articles of association of a company or association, the provision devolving to arbitrators disputes connected to the corporate or associative contract also includes disputes involving persons who, at the time of the proceedings, no longer hold the status of member or associate, such status having ceased due to withdrawal or exclusion, given that situations relating to corporate or associative life remain, for the purposes of the effectiveness of the arbitration clause in the articles of association, those broadly understood, with regard not only to internal governance matters, but also to the individual member in his or her relations, even if no longer or not yet current, with the entity, with its organs or with other members.
For the purposes of characterising the arbitration clause as institutional arbitration or contractual arbitration (arbitrato irrituale), the clause itself must be interpreted with reference to its literal wording, the common intention of the parties and their overall conduct, without the failure to refer to the formalities of institutional arbitration unequivocally indicating a contractual nature. Neither the conferral upon the arbitrators of the power to decide according to equity or in the capacity of amiable compositeurs, nor the prior attribution to the arbitral award of the character of non-appealability, nor the provision exempting the arbitrators from observing procedural formalities constitute decisive elements for characterising contractual arbitration; rather, for the purposes of characterisation as institutional arbitration, terminological expressions consistent with the activity of adjudication and with the outcome of adjudication in respect of a dispute should be given weight.
In case of doubt as to the interpretation of the actual intention of the contracting parties regarding the nature of the arbitration clause, the question must be resolved in favour of institutional arbitration, having regard to the greater guarantees offered by institutional arbitration as to the enforceability of the award and the regime of challenges.
The defence of institutional arbitration has the nature of a procedural defence of jurisdiction and, as such, must be raised, on pain of preclusion, in the first defensive act of the defendant party, which in ordinary civil proceedings consists of the statement of defence.
The provision, in the arbitration clause in the articles of association, for referral to the president of the court for the appointment of the arbitral tribunal, where the person external to the company designated fails to act, constitutes an element confirming the institutional nature of the arbitration.