Court of Torino, judgment of 15 July 2026, No. 4360

Arbitration is a means of resolving disputes alternative to the jurisdiction of the ordinary courts and is divided into arbitration proper, in which private adjudicators, with both parties being heard, issue an instrument capable of producing the effects of a judgment and of constituting an enforceable title, and contractual arbitration (arbitrato irrituale), in which the decision of the private adjudicator is essentially contractual in nature.
In arbitraggio (third-party determination of the content of a contract) there is no disputed situation; rather, the parties entrust the third party with determining, in their place, the content of a contract already concluded but incomplete, so that the difference from arbitration lies in the content of the mandate conferred on the third party: arbitration operates between opposing rights, whereas arbitraggio completes a contractual arrangement by settling a mere conflict of interests.
Where the parties entrust the third party only with a binding technical assessment, excluding from his powers the resolution of questions concerning the validity and effectiveness of the relationship, the agreement falls outside both arbitraggio and arbitration and constitutes a contractual expert determination (perizia contrattuale), to which the rules on arbitration do not apply and which remains open to challenge for the defects proper to any expression of contractual will.
The central element distinguishing arbitration, whether arbitration proper or contractual arbitration, from other contractual instruments is the parties' express waiver of judicial action and of the jurisdiction of the State; absent such waiver, a contractual expert determination retains its atypical contractual nature and does not preclude subsequent recourse to the courts.