For the purposes of the legal qualification of an arbitration clause as institutional or contractual arbitration (arbitrato irrituale), it is necessary to interpret the arbitration agreement according to the normal interpretative principles under Article 1362 of the Civil Code, with reference to the literal text, the common intention of the parties and their overall conduct, including conduct subsequent to the conclusion of the contract.
An arbitration clause which provides that the panel formed by the arbitrators shall operate “in the capacity of arbitrators” constitutes contractual arbitration (arbitrato irrituale), since the reference to the role of the arbitrators as “arbitrators” places the matter in the contractual sphere rather than the adjudicatory sphere.
The objection of lack of jurisdiction based on the presence of an arbitration clause for institutional arbitration cannot be considered equivalent to the objection of inadmissibility of the claim resulting from the provision of a clause for contractual arbitration (arbitrato irrituale), as the two objections constitute distinct and non-overlapping procedural situations.