Contractual arbitration (arbitrato irrituale) by experts is a legal transaction whereby the parties refer the determination of contractual elements — in particular the quantification of damage — to third parties; it is to be distinguished from contractual arbitration (arbitrato irrituale) proper, which is resorted to only when the party-appointed experts fail to reach agreement and a third expert is appointed to resolve the disagreement by means of an act of a contractual nature.
Under a system of expert determination provided for in the general conditions of an insurance policy, the panel of experts consists of two party-appointed experts; the third expert intervenes exclusively in the event of disagreement between the two, or at the request of one of the parties, in which case contractual arbitration (arbitrato irrituale) arises; where the insurance company fails to appoint its own expert, the interested party may apply to the president of the court for a substitute appointment pursuant to art. 810 of the Code of Civil Procedure, and the arbitrator so appointed assumes the role of the expert not designated by the company.
An award rendered at the conclusion of contractual arbitration (arbitrato irrituale) is contractual and not judicial in nature; it does not constitute a title suitable for obtaining an order for payment pursuant to art. 634 of the Code of Civil Procedure, nor can it form the basis of enforcement proceedings, since enforceability belongs exclusively to awards rendered in arbitration that have been declared enforceable pursuant to arts. 824 bis and 825 of the Code of Civil Procedure.