In order to determine whether a given arbitration clause provides for arbitration or for contractual arbitration (arbitrato irrituale), regard must be had to the intention of the parties as ascertained by the rules of contractual interpretation, arbitration arising where the parties intended to entrust to the arbitrators a function in substitution of that of the court, and contractual arbitration (arbitrato irrituale) where the parties intended to entrust to the arbitrators the resolution of disputes by way of a private-law transaction.
The conferral on the arbitrators of the power to decide in equity, or as amicable compositors, the characterisation of the arbitral decision as not subject to appeal, and the provision exempting the arbitrators from procedural formalities are not decisive factors in characterising the proceedings as contractual arbitration (arbitrato irrituale) and in excluding arbitration; in case of doubt, the clause must be interpreted as providing for arbitration, having regard to the exceptional nature of the derogation from the rule that the award has the effect of a judicial judgment.
Where there is a divergence between the nature of the arbitration provided for by the arbitration clause and that of the proceedings actually conducted, the means of challenging the award must be determined on the basis not of the intention expressed by the parties, but of the nature of the act performed by the arbitrator.
An award rendered as a contractual arbitration (arbitrato irrituale) award, in breach of an arbitration clause providing for arbitration, is voidable under art. 808 ter(2)(4) of the Code of Civil Procedure, for failure by the arbitrators to comply with the rules imposed by the parties as a condition of validity of the award.