Court of Napoli Nord, judgment of 6 August 2026, No. 2802

There is a contractual expert determination (perizia contrattuale), and not an arbitration, whenever the parties refer to third parties chosen for their particular technical expertise not the resolution of a legal dispute but the making of a technical appraisal which they undertake in advance to accept as the direct expression of their own volition.
Contractual expert determination, although sharing with arbitration the conferral on a third party of a mandate to settle the dispute, differs from it as regards the third party's powers, since the arbitrator makes a volitional and discretionary determination, whereas the expert carries out a mere technical ascertainment, without freedom of judgment and characterised by technical discretion alone.
In contractual arbitration (arbitrato irrituale) the third party is called upon to settle a legal disagreement concerning the relationship as a whole, whereas in contractual expert determination he is called upon to settle one or more questions of fact whose determination requires specific technical expertise.
The parties' recourse to contractual expert determination does not preclude an application to the court for the resolution of disputes on questions of law, which by the very structure of the institution are withheld from the appointed experts.
Contractual expert determination has the nature of contractual arbitration (arbitrato irrituale), falling within art. 808 ter cod. proc. civ., only where the parties have agreed definitively to waive the exercise of their rights before the ordinary court; in the absence of such an express waiver it constitutes an atypical arrangement having the nature of a contractual obligation.
Pure contractual expert determination is merely obligatory in nature and does not preclude either party from bringing court proceedings covering also that part of the dispute entrusted to the expert; such conduct amounts to a breach of contract and exposes the party to the related liability in damages, but does not render the claim inadmissible.
A party complaining of the other party's inactivity in completing the contractual expert determination may remedy this by applying to the President of the competent court for the appointment of the expert.