Contractual arbitration (arbitrato irrituale) takes the form of a joint mandate conferred by the parties on one or more arbitrators for the resolution of the dispute by means of a dispositive legal act, and is not analogous to a settlement agreement, since the resolution of the dispute by the arbitrators does not entail mutual concessions between the parties.
An arbitration clause providing for the referral of any dispute arising from the instrument in which it is contained binds the parties even after the termination of the contractual relationship by withdrawal, since the scope of the clause is independent of whether the relationship is still in existence at the time the claim is brought.
As regards arbitration, the presumption in favour of arbitral competence contained in art. 808-quater cod. proc. civ. refers only to cases in which the interpretative doubt concerns the scope of the subject-matter referred to the arbitrators by the relevant agreement and not the parties' very choice of arbitration.
An objection alleging the existence of an arbitration clause for contractual arbitration (arbitrato irrituale) does not raise an issue of jurisdiction of the judicial authority, but challenges the admissibility of the claim on the ground that the contracting parties chose the contractual resolution of the dispute, thereby waiving judicial protection.
By virtue of the judgment of the Constitutional Court No. 223 of 2013, which declared the constitutional illegitimacy of art. 819-ter cod. proc. civ. insofar as it excludes the applicability, to the relationship between arbitration and court proceedings, of rules corresponding to art. 50 cod. proc. civ., the court that declines its jurisdiction in favour of the arbitrators is required to set a time limit for the recommencement of the proceedings before the arbitrator.