Article 810, paragraph 2, of the Code of Civil Procedure, which allows a party to apply to the President of the court for the appointment of an arbitrator in case of inaction by the counterparty, although enacted with reference to institutional arbitration, is applicable by analogy to contractual arbitration (arbitrato irrituale), in consideration of the structural and functional similarity of the two institutions, the need to ensure the preservation of the contract notwithstanding the default of one of the contracting parties, and the admissibility of an intervention of voluntary jurisdiction also to remedy contractual inaction. It follows that the failure to appoint an arbitrator by the respondent does not render the arbitration agreement for contractual arbitration (arbitrato irrituale) inoperative, which remains effective also as a preclusive pact barring the submission of the dispute entrusted to the arbitrators’ determination in contentious proceedings.
In contractual arbitration (arbitrato irrituale), service of the arbitration claim and of the acts of the arbitral proceedings effected at the certified electronic mail address appearing in the register of companies or the INI-PEC register is validly perfected upon receipt of the delivery confirmation, regardless of actual reading by the addressee, the burden resting upon the entrepreneur to ensure the proper functioning of his certified mail box and to prudently check incoming mail. Failure to consult the PEC mailbox due to circumstances attributable to the addressee does not constitute a breach of the principle of the right to be heard nor can it produce adverse consequences for the party who has correctly effected the communications.
In contractual arbitration (arbitrato irrituale), where the parties have not predetermined the procedural rules to be adopted, the arbitrators are free to regulate the articulation of the proceedings in the manner deemed most appropriate, even departing from the provisions of the code of procedure, with the sole limit of observing the principle of the right to be heard, which must be appropriately adapted to the arbitral proceedings and is satisfied when the party is guaranteed the possibility of participating in the proceedings on an equal footing with the counterparty.
It does not constitute a breach of the principle of the right to be heard in contractual arbitration (arbitrato irrituale) the failure to communicate acts which do not result in any enlargement of the thema decidendum already defined by the arbitration claim, nor the failure to transmit procedural documents already formed in adversarial proceedings between the parties in previous instances and subsequently produced in the arbitral proceedings.
Objections relating to errores in iudicando contained in the contractual arbitration award (arbitrato irrituale), pertaining to the merits of the dispute referred to the arbitrators by virtue of a valid arbitration clause, are not subject to review by the ordinary court in opposition proceedings to an injunctive decree based on the said award.