The distinguishing criterion between institutional arbitration and contractual arbitration (arbitrato irrituale) lies in the intention of the parties: in institutional arbitration, the parties intend to obtain an award capable of enforcement pursuant to Article 825 of the Code of Civil Procedure, whereas in contractual arbitration they aim at an amicable settlement traceable to their contractual will. For the purposes of classification, the conferral upon the arbitrators of the power to decide according to equity or as amiable compositeurs, the provision that the decision shall be final, or the exemption from procedural formalities do not constitute decisive elements; instead, the terminological expressions referring to the activity of adjudication and to the outcome of a judgment on a dispute must be given weight.
The presence of an arbitration clause providing for institutional arbitration does not preclude the filing of an application by way of application for an order for payment, nor does it prevent the issuance of the payment order; however, the party served retains the right to raise in opposition proceedings the incompetence of the ordinary court in favour of the arbitrators, with consequent declaration of nullity and revocation of the order for payment.
The obligation to attempt mediation beforehand pursuant to Article 5 of Legislative Decree 28/2010 does not apply when the dispute falls within arbitral jurisdiction by virtue of an arbitration clause, given that such mechanism for reducing judicial litigation has no reason to exist where the case does not fall within the cognizance of the state court, the parties having already withdrawn the dispute from the ordinary jurisdiction by means of the arbitration clause agreement.