In the field of arbitral jurisdiction, the presence of an arbitration clause does not preclude the creditor from seeking and obtaining from the ordinary court an order for payment in respect of a debt arising from the contract, without prejudice to the right of the debtor to raise the objection of arbitral jurisdiction in opposition proceedings, with the consequent obligation upon the court to set aside the order for payment and to refer the parties to the sole arbitrator or the arbitral tribunal.
The question whether a dispute falls within or outside the cognisance of the arbitrators constitutes a question of jurisdiction.
In the interpretation of an arbitration clause, the institutional or contractual (arbitrato irrituale) nature of the arbitration must be ascertained by reference to the intention of the parties, reconstructed in accordance with the ordinary rules of contractual interpretation. Institutional arbitration obtains where the arbitrators have been entrusted with a function substituting that of the court, whereas contractual arbitration (arbitrato irrituale) obtains where the arbitral tribunal has been charged with the resolution of specified disputes on a contractual basis. Where an interpretive doubt as to the actual intention of the contracting parties persists, the arbitration must be declared to be contractual (arbitrato irrituale), having regard to the exceptional nature of institutional arbitration, which introduces a derogation from the jurisdiction of the ordinary court.
An arbitration clause does not constitute an accessory of the contract in which it is contained but possesses its own distinct individuality, separate from that of the contract to which it relates, so that the grounds of invalidity of the substantive transaction do not extend to it. Accordingly, the nullity of the contract does not vitiate the arbitration clause contained therein, the determination of the alleged invalidity being reserved to the arbitrators.
An arbitration clause referring to all disputes relating to a particular contractual subject-matter cannot be interpreted restrictively as limited to the mere quantification of performance, but must be understood as encompassing issues relating to the existence of the obligation (an debeatur) as well, since otherwise the purpose of the alternative dispute resolution mechanism would be frustrated.
Article 1341(2) of the Civil Code, which makes the effectiveness of onerous clauses conditional upon their specific written approval, applies only where such clauses are incorporated in general conditions of contract intended to govern an indefinite series of transactions. The requirements for the application of Article 1341 of the Civil Code are not satisfied where the arbitration clause is contained in specifications prepared for a single and specific transaction, amounting to a contractual arrangement drawn up with reference to a single contract.