An arbitration clause is to be classified as providing for arbitration, and not contractual arbitration (arbitrato irrituale), where it lacks elements univocally indicative of the latter and contains expressions such as “judgment of an arbitral tribunal”, “shall render judgment”, “shall adjudicate” and “costs of the proceedings”, which are consistent with the activity of arbitrators called upon to render a decision potentially interchangeable with that of the organs of state jurisdiction, even where the clause provides for the appointment of arbitrators by the Chamber of Commerce.
An arbitration clause contained in the by-laws of a consortium, pursuant to Article 838 bis of the Code of Civil Procedure, extends to disputes relating to the performance of contracts for the assignment of activities to consortium members, where such contracts constitute mere acts of performance of the consortium agreement by which the consortium allocates among its members the works undertaken, and concern disposable rights relating to the corporate relationship, such as individual members’ pecuniary claims against the company which do not involve supra-individual interests protected by mandatory rules.
The insolvency administrator (curatore fallimentare) or the liquidating commissioner who brings proceedings to obtain payment of a sum already due to the bankrupt entity or to the entity subject to compulsory administrative liquidation stands in the same substantive and procedural position as the debtor, with the consequence that the defendant may lawfully raise against him the objection of arbitration based on the arbitration clause entered into by the debtor prior to the insolvency proceedings, the continuity of operation of the contractual mechanism governed by the arbitration clause applying.