A ruling on competence recorded in the minutes of a hearing in the context of dealing with an interlocutory application, not preceded by a formal referral of the case for decision on that issue nor by an invitation to the parties to state their final submissions on that specific point, does not constitute a final decision on competence and does not preclude the question of the operation of the arbitration clause from being reconsidered when the final decision is given.
An arbitration clause contained in a contract concluded between a trader and a consumer may be examined under consumer protection legislation in so far as it derogates from the competence of the courts, but the sanction provided by the legal order is a nullity of protection and operates only for the benefit of the consumer.
The court may raise the possible unfairness of the arbitration clause and submit it to the parties for argument, but it cannot declare it null to the detriment of a consumer who, far from invoking such nullity, has deliberately chosen to rely on that clause.
A plea of nullity of the arbitration clause put forward by the trader who drafted the contract, with the aim of removing the dispute from the arbitral cognizance invoked by the consumer and of keeping the case before the ordinary court, cannot be upheld.
Whether an arbitration agreement is to be characterised as providing for arbitration or for contractual arbitration (arbitrato irrituale) is a question of interpretation of the parties’ common intention and must be resolved in the light of the canons of interpretation set out in artt. 1362 et seq. cod. civ.
Expressions such as «without formalities», «amicable settlers» or «on an irrituale basis» are not in themselves decisive, as they may at most indicate the conferral of the power to decide ex aequo et bono, whereas expressions evoking a genuine adjudicatory activity, such as «judgment», «to adjudicate» or «award», as well as the reference to cognizance of contractual disputes, are relevant in the opposite sense.
A provision that the arbitral tribunal may also decide ex aequo et bono and without observing the rules of the civil code is compatible with arbitration ex aequo et bono and is not, in itself, capable of demonstrating the parties’ intention to depart from the statutory model laid down in artt. 806 et seq. cod. proc. civ.
Characterising the clause as an agreement for arbitration entails the application of art. 819-ter cod. proc. civ. and the framing of the related question in terms of competence; where the plea of lack of competence is upheld, the opposed order for payment is revoked.