For the purposes of classifying the arbitration as institutional or contractual (arbitrato irrituale), the distinguishing criterion lies in the fact that in arbitration the parties intend the delivery of an award capable of being rendered enforceable and of producing the effects proper to a judgment, whereas in contractual arbitration (arbitrato irrituale) they intend to entrust to the arbitrator the resolution of the dispute through a contractual mechanism, by means of an amicable settlement or a declaratory agreement referable to their own will.
In order to determine whether the arbitration is institutional or contractual (arbitrato irrituale), the arbitration clause must be construed in accordance with the ordinary canons of interpretation derived from Article 1362 of the Civil Code and, accordingly, regard must be had to the literal text, to the common intention of the parties and to their overall conduct, including conduct subsequent to the conclusion of the contract, without the failure to refer in the clause to the formalities of arbitration pointing unequivocally towards contractual arbitration (arbitrato irrituale), account being taken of the greater safeguards afforded by the institutional form of arbitration as regards the enforceability of the award, the regime of challenge and the possibility for the court to grant a stay.
Elements pointing towards the institutional nature of the arbitration, notwithstanding the formal description as contractual arbitration (arbitrato irrituale) contained in the clause, include the independence and authority of the deciding tribunal, the provision for the taking of evidence for the purposes of completeness of the findings, the provision that the decision must set out the criteria for the apportionment of costs, the absence of any reference to the contractual binding force of the arbitral decision, and the conferred power to derogate by agreement in favour of a decision according to equity with an award not subject to challenge.
Given the para-jurisdictional nature of arbitration, which substitutes the judicial function ordinarily discharged by the organs of the State and is directed towards the delivery of a measure capable of acquiring the same effect as a judgment delivered by the court, the objection of lack of jurisdiction raised in due time under Article 819-ter of the Code of Civil Procedure is well-founded and deserving of being upheld.
The existence of an arbitration clause does not preclude the jurisdiction of the ordinary court to issue an order for payment, but the objection of lack of jurisdiction may be validly raised in opposition proceedings, with the consequent revocation of the order.