The formulation of an arbitration clause by means of a modal verb indicating a faculty does not impose on the parties an obligation to have recourse to the arbitrator, recourse to arbitration being configured as a mere possibility and not as a legal duty.
A public administration lacks the capacity to enter into valid arbitration agreements providing for contractual arbitration (arbitrato irrituale), given that such form of arbitration entails the referral of the dispute to persons identified in the absence of legally determined procedures and of the necessary guarantees of transparency and publicity required for the exercise of administrative functions.
The existence of an arbitration clause conferring on the parties the faculty, and not the obligation, to refer disputes to arbitrators does not render inadmissible a claim brought before the ordinary court.