By virtue of the principle of autonomy of the arbitration clause, it has an individuality clearly distinct from the contract in which it is contained and does not constitute an accessory thereof. The termination of the contract does not affect the arbitration clause contained therein, which remains valid and effective for disputes arising from the contract itself.
In order to determine whether an arbitration clause provides for arbitration or for contractual arbitration (arbitrato irrituale), regard must be had to the intention of the parties as ascertainable under the rules of contractual interpretation. The distinguishing criterion lies in the fact that in arbitration the parties intend the rendering of an award capable of being declared enforceable and of producing the effects of art. 825 of the Code of Civil Procedure, whereas in contractual arbitration (arbitrato irrituale) they intend to entrust the arbitrator with the resolution of the dispute through a contractual instrument.
An arbitration clause providing for contractual arbitration (arbitrato irrituale) does not have an unfair character within the meaning of art. 1341, para. 2, of the Civil Code, since it does not entail a derogation from the jurisdiction of the judicial authority but merely renders the claim inadmissible on account of a conventional waiver of the right of action.
The inadmissibility of the claim arising from the provision of a contractual arbitration (arbitrato irrituale) clause does not preclude the issuance of a payment order, as the debtor retains the right to raise the inadmissibility before the opposition court in order to obtain the relevant declaration.