The connection between disputes arising from a plurality of contracts, of which only some contain an arbitration clause, does not affect the operation of the arbitration agreement nor does it allow disputes referred to arbitrators to be brought within the cognisance of the ordinary court or vice versa, the principle of so-called “parallel proceedings” established by Article 819-ter of the Code of Civil Procedure being operative, which entails the coexistence of state court proceedings and arbitral proceedings without reciprocal vis attractiva, save for the exhaustive cases of stay provided for by law.
In application of the interpretative criterion set out in Article 808-quater of the Code of Civil Procedure, according to which in case of doubt the arbitration agreement is to be interpreted extensively to cover all disputes arising from the contract, an arbitration clause referring to arbitrators disputes relating to the “execution of works” must be understood as also covering disputes concerning payment of the contract price, inasmuch as they are synallagmatically connected to the characteristic performance of the contract for works.
The canon of good faith in interpretation pursuant to Article 1366 of the Civil Code requires the exclusion of a restrictive reading of the arbitration clause which would lead to an unreasonable splitting of the fora for remedies, preventing the party sued for the contract price from raising in the same forum defences and claims arising from the performance of the contract, or entrusting to arbitrators the interpretation of the contract but not the decision on its complete performance.
The claim relating to default interest falls within the objective scope of the arbitration clause referring to arbitrators disputes concerning the performance of the contract, default interest being accessories to the principal debt, elements inseparably connected to the contractual source, without it being conceivable to include the principal sum in the arbitration and exclude the accessory obligations arising therefrom.
An arbitration clause providing for the arbitrators’ decision “according to equity”, together with the parties’ undertaking to accept the award as “final” and the waiver of judicial remedies, denotes the common intention to confer upon the arbitrators a power of contractual determination in substitution of the parties’ will, constituting a contractual arbitration (arbitrato irrituale).
The pleading of an arbitration agreement or arbitration clause for contractual arbitration (arbitrato irrituale) does not raise a question of jurisdiction or competence, but entails the inadmissibility of the judicial claim by reason of waiver of the right of action in favour of the private remedy chosen by the parties.