The preventive technical assessment for conciliation purposes pursuant to Article 696-bis of the Code of Civil Procedure, not being of a precautionary nature and being independent of the assessment of periculum in mora, does not fall within the scope of application of Article 669-quinquies of the Code of Civil Procedure as extended by judgment of the Constitutional Court No. 26/2010, which declared the constitutional illegitimacy of Article 669-quaterdecies of the Code of Civil Procedure limited to preventive technical assessment under Article 696 of the Code of Civil Procedure. It follows that, in the presence of an arbitration clause conferring jurisdiction over technical disputes to an expert appointed by the parties, an application under Article 696-bis of the Code of Civil Procedure must be declared inadmissible, the derogating effect of the arbitration agreement operating in full.
In the presence of an arbitration clause, preventive technical assessment under Article 696 of the Code of Civil Procedure may be requested from the ordinary court pursuant to Article 669-quinquies of the Code of Civil Procedure, but the applicant must nonetheless demonstrate the existence of periculum in mora, consisting in a concrete fear that the subject matter of the evidence may be lost or undergo alteration in the time necessary to activate the dispute resolution mechanisms provided for by the arbitration agreement. In the absence of such demonstration, the application must be declared inadmissible for lack of the necessary prerequisites.