The preliminary technical investigation with conciliatory purpose pursuant to Article 696-bis of the Code of Civil Procedure does not fall within the interim proceedings to which Article 669-quinquies of the Code of Civil Procedure on arbitration clauses applies, given that Article 669-quaterdecies of the Code of Civil Procedure does not provide for its extension to preliminary technical expert evidence with conciliatory purpose, with the consequent lack of jurisdiction of the ordinary court where an arbitration clause has been agreed and the respondent party has raised an objection as to its applicability.
The declaration of constitutional invalidity of Article 669-quaterdecies of the Code of Civil Procedure, insofar as it excluded the application of Article 669-quinquies of the Code of Civil Procedure to preliminary technical investigation pursuant to Article 696 of the Code of Civil Procedure, cannot be extended to the institution governed by Article 696-bis of the Code of Civil Procedure, given that the latter pursues the different purpose of preventive conciliation of the dispute and not that of protecting the right to evidence from the risk of loss due to urgency, which constituted the basis of the ruling of the Constitutional Court.
The need for reducing litigation and for reasonable duration of proceedings, which constitutes the ratio of the institution of preliminary technical expert evidence with conciliatory purpose, is not applicable with reference to arbitration proceedings, which are not affected by the workload of judicial offices and whose duration is protected from within the system through the imposition of the time limit for the rendering of the award and the free determination of procedural rules pursuant to Article 816-bis of the Code of Civil Procedure.
The agreement of an arbitration clause reveals the intention of the parties to entrust to the arbitrators the entire decision of the dispute, including the taking of evidence, so that the objection of lack of jurisdiction of the ordinary court raised by the party who does not intend to entrust to the court tasks which by common choice belong to the arbitrators must prevail over the unilateral request for preliminary technical expert evidence with conciliatory purpose made by the opposing party.