The distinction between institutional arbitration and contractual arbitration (arbitrato irrituale) is based on the intention of the parties, as can be inferred from the arbitration clause: in institutional arbitration, the parties intend to reach an award capable of being made enforceable pursuant to Article 825 of the Code of Civil Procedure, with observance of the rules of arbitral proceedings; in contractual arbitration, they entrust the arbitrators with the settlement of the dispute by means of a contractual instrument, through a declaratory agreement attributable to their will. In case of doubt, contractual arbitration must be preferred, given the exceptional nature of institutional arbitration as a derogation from the jurisdiction of the ordinary judicial authority.
The existence of an arbitration clause for institutional arbitration gives rise to a question of jurisdiction, with consequent declaration of lack of jurisdiction of the ordinary court, whereas the existence of an arbitration clause for contractual arbitration gives rise to a question of merit, resulting in the inadmissibility of the judicial claim.
The objection of inadmissibility or lack of jurisdiction based on the provision of an arbitration clause is not to be raised of the court's own motion, but only upon application by the interested party; therefore, it does not preclude the request or the issue of an order for payment, the respondent retaining the power to raise the inadmissibility of the claim in opposition proceedings.
Pursuant to Article 808-quater of the Code of Civil Procedure, in case of doubt the arbitration agreement is to be interpreted as meaning that arbitral jurisdiction extends to all disputes arising out of the contract or the relationship to which the agreement refers, including those relating to non-payment of the consideration for services rendered.
An institutional arbitral award, pursuant to Article 824-bis of the Code of Civil Procedure, produces from the date of its final signature the effects of a judgment delivered by the judicial authority; consequently, a final award having a merely declaratory nature and establishing the existence of a debt, although lacking enforcement effect in the absence of a condemnatory provision, constitutes written evidence suitable pursuant to Article 634 of the Code of Civil Procedure to found an application for an order for payment.
The activation of the contractually provided arbitral proceedings and the issue of the resulting award do not preclude the creditor from subsequently bringing proceedings before the ordinary courts to obtain an enforcement title, where the arbitral award, although establishing the existence of the debt, lacks a condemnatory provision and therefore enforcement effect pursuant to Article 474 of the Code of Civil Procedure.