When interpreting an arbitration clause, the court is required to examine its nature and validity by assessing the arbitration agreement as a whole and applying the rules of construction set out in Articles 1362 et seq. of the Civil Code, with a view to ascertaining the true intention of the parties to the arbitration agreement.
A contractual arbitration (arbitrato irrituale) clause is an ordinary contractual provision by which the parties do not intend to derogate from state jurisdiction but confer a negotiating mandate upon a third party charged with settling the dispute by means of a purely declaratory legal act; it is distinguished from arbitration not by the fact that arbitration confers on the arbitrators a function replacing that of the judge, but by the fact that in arbitration the parties seek to obtain an award capable of being enforced and of producing the effects referred to in Article 825 of the Code of Civil Procedure, with observance of the procedural rules of arbitration, whereas in contractual arbitration (arbitrato irrituale) the parties intend to entrust the arbitrators with the resolution of the dispute exclusively through the instrument of private agreement, by way of amicable settlement or a declaratory transaction referable to the parties' own will.
An arbitration clause has the character of contractual arbitration (arbitrato irrituale) where it provides for the parties' commitment to treat the arbitral decision as final and binding in the same way as an agreement concluded between them, that is, as an expression of their own personal will; for this purpose, it is irrelevant whether the clause provides that the decision is binding even if signed only by a majority of the arbitrators, or that the decision shall be made according to law without observance of the procedural forms of the code of civil procedure, provided that the adversarial principle is observed.
A statutory arbitration clause devolving to an arbitral tribunal all disputes between members or between members and the company concerning available patrimonial rights relating to the corporate relationship also covers disputes concerning the challenge of resolutions of the shareholders' meeting, as such disputes concern available patrimonial rights.
The existence of a contractual arbitration (arbitrato irrituale) clause does not give rise to a question of jurisdiction of the ordinary courts, but entails that the judicial claim is inadmissible (improponibile); the relevant objection is therefore one going to the merits and not to procedural admissibility.