In order to ascertain whether a given arbitration clause provides for arbitration or contractual arbitration (arbitrato irrituale), regard must be had to the intention of the parties as discernible from the rules of contractual interpretation; the distinguishing criterion between the two forms lies in the fact that in arbitration the parties intend the award to be capable of being declared enforceable and to produce the effects referred to in art. 825 of the Code of Civil Procedure, whereas in contractual arbitration (arbitrato irrituale) they intend to entrust the arbitrator with the resolution of disputes solely through a contractual instrument.
An express reference to an amiable compositeur in the arbitration clause unequivocally indicates the parties' intention to entrust the arbitrators with the resolution of the dispute solely through a contractual instrument, resulting in the classification of the arbitration as contractual (irrituale).
An arbitration clause providing for contractual arbitration (arbitrato irrituale) is not an unfair term, since only arbitration clauses providing for arbitration contain a derogation from the jurisdiction of the courts, whereas those providing for contractual arbitration (arbitrato irrituale) merely render the claim inadmissible on account of a contractual waiver of the right of action.