Court of Milan, judgment of 23 July 2026, No. 6296

The court is not bound by the legal characterisations put forward by the parties and must arrive at the correct characterisation of the legal institutions on the basis of all the material available for assessment; accordingly, a third party's determination, although described by the parties as a determination by a third party (arbitraggio) or contractual expert determination under art. 1349 cod. civ., must be characterised as an award made in disposing of a contractual arbitration (arbitrato irrituale) where the task entrusted to him was that of resolving contested points on which no agreement could be reached and consisted in the assessment of evidence and in adjudication.
Indications of the adjudicatory nature of the activity carried out by the third party, and therefore of the characterisation of his act as a contractual award, are the appointment of party experts, the holding of several meetings attended by the experts and by counsel, the obtaining of documents examined in adversarial proceedings, the filing of party reports and the assessment of the merits of the claim and of the evidence supporting it.
For the purpose of determining the parties' common intention as to the performance of the clause referring the dispute to the third party, regard must be had, under art. 1362 cod. civ., to their conduct as a whole, including conduct subsequent to the conclusion of the contract, and in particular to the absence of any objection as to the course of the proceedings.
A contractual award may be set aside only on the grounds exhaustively laid down by art. 808 ter cod. proc. civ. and cannot be challenged on the merits, so that it is not open to a party to plead the nullity of the underlying contract or the erroneousness of the arbitrator's reconstruction of the facts.
Where the title on which the claim brought before the court is founded consists in the arbitrator's determination, and not in the underlying contract, the dispute is not subject to mandatory mediation.