An arbitration clause providing for contractual arbitration (arbitrato irrituale) contained in a contractual condominium regulation, drafted by the original developer and referred to in the sale contracts of individual property units, cannot be amended or abolished by a majority resolution of the condominium assembly, but requires the unanimous consent of all condominium owners, as it constitutes a provision of a contractual nature.
An arbitration clause providing for contractual arbitration (arbitrato irrituale) which provides for amicable settlement of the dispute and empowers the arbitrators to decide as amiable compositeurs constitutes free arbitration and not a mere attempt at conciliation, even where it contains a condition subsequent terminating the obligation to refer the dispute to arbitrators linked to failure to comply with the time limit for deposit of the award.
The objection based on a contractual arbitration clause (arbitrato irrituale) relates to the merits and not to jurisdiction, since a contractual arbitration award has a contractual nature and the arbitration agreement constitutes a waiver of court action and of state jurisdiction, with the consequent inapplicability of the rules laid down for institutional arbitration, including Article 819-ter of the Code of Civil Procedure.
An arbitration clause inserted in the condominium regulation drafted by the original developer may be declared unfair under consumer protection legislation only where it is invoked by the consumer or raised of the court’s own motion in proceedings between the parties to the consumer relationship, and provided that it is shown to have caused a significant imbalance in the rights and obligations arising from the sale contract concluded between the seller acting in a professional capacity and the purchaser acting as a consumer.