An objection based on the existence of an arbitration clause or any other contractual derogation from the ordinary courts’ jurisdiction is not available to be raised by the court of its own motion, but must be raised timeously by the interested party in accordance with the ordinary rules on procedural time-limits; a defendant who enters an appearance out of time is precluded by art. 167, para. 2, cod. proc. civ. from raising such an objection.
The classification of an arbitration as arbitration or contractual arbitration (arbitrato irrituale) must be inferred from the common intention of the parties, by ascertaining whether they intended to confer upon the arbitrators a function substituting that of the judge — producing an award capable of having the effects provided for in art. 825 cod. proc. civ. — or rather to entrust them with a consensual resolution of dispute attributable to the parties’ own will; in cases of doubt, contractual arbitration (arbitrato irrituale) should be preferred, since arbitration proper derogates from the ordinary courts’ jurisdiction.
The classification of an arbitration as arbitration or contractual arbitration (arbitrato irrituale) has significant procedural consequences: the existence of an arbitration clause for contractual arbitration (arbitrato irrituale) raises a question of substantive law from which follows the inadmissibility of the claim before the ordinary courts; conversely, the existence of an arbitration clause for arbitration gives rise to a declaration of lack of competence.