The invalidity of an arbitration clause contained in the constitution of an unincorporated association is to be assessed in the light of artt. 1418 et seq. cod. civ. and also, in the case of contractual arbitration (arbitrato irrituale), of art. 808-ter cod. proc. civ., which includes the invalidity of the arbitration agreement among the grounds for annulment of the award.
The conferral upon arbitrators, whether in arbitration or in contractual arbitration (arbitrato irrituale), of the power to determine the dispute requires, as a safeguard of the requirement of impartiality, that their designation take place with the concurrence of all the parties, that rule being, in arbitration matters, an expression of the principle of the relative effect of contracts and a safeguard against impermissible derogations from the principle of the natural judge and of the general availability of judicial protection.
That principle applies only where the clause in the constitution is capable of being characterised as an arbitration clause, associations not being precluded from providing themselves with internal adjudicatory bodies whose determinations, emanating from a body lacking the requirements of independence and impartiality, have purely internal significance and do not acquire the binding character proper to a contractual award.
A clause in the constitution which lays down a procedure for the internal resolution of disputes within the association, not entailing a waiver of the right of action, does not preclude access to judicial protection, whether in advance or by way of challenge to the act of the internal body for formal or substantive defects of that act.