In order to assess whether a dispute arising from the performance of agreements supplementing or replacing an administrative measure, falling within the exclusive jurisdiction of the administrative court pursuant to art. 133 co. 1 lett. a) n. 2 d.lgs. 104/2010, is capable of being referred to arbitration, regard must be had to the nature of the legal positions asserted, recourse to arbitration being available only where such positions have the substance of subjective rights within the meaning of art. 12 c.p.a., and not the substance of legitimate interests.
The activity of arbitrators in arbitration proceedings is of a jurisdictional nature and is substitutive of the function of the ordinary court, so that the determination whether a dispute falls within the cognisance of the former or of the latter constitutes a question of competence, whereas the determination whether a dispute belongs to the jurisdiction of the ordinary court and, within that sphere, to the substitutive jurisdiction of the arbitrators, or rather to that of the administrative court, gives rise to a question of jurisdiction.
An arbitration clause contained in a programme agreement to which a plurality of public and private parties are signatories extends its effects to all parties who have subscribed to the agreement and to all disputes arising therefrom, provided that the overall tenor of the agreement does not disclose an intention to confine the operation of the clause to certain parties only or to certain disputes only.
Where the legal position asserted in the arbitration proceedings has the substance of a legitimate interest — as in the case of a claim to obtain public funding promised under a programme agreement, where the decision on the matter is deferred to subsequent consensual acts expressing the discretionary power of the public administration — the lack of jurisdiction of the ordinary court must be declared and, consequently, the nullity of the arbitral award.