A contractual expert determination consists, in general, of a contractual clause whereby the contracting parties agree that a third party, chosen for his specific technical knowledge and the confidence reposed in him, shall intervene on one or more questions relevant to a legal relationship subsisting between them, the clarification of which requires the application of rules of experience pertaining to a given field, and agree to subject themselves to a twofold obligation: that arising from the agreement by virtue of which they undertake to entrust the resolution of a given question to a third-party expert, and that arising from the determination which the third-party expert will carry out.
A contractual expert determination may assume, where its content is referable to the provisions of art. 808-ter cod. proc. civ. and entails a definitive waiver by the parties of their right to bring proceedings before the ordinary court, the nature of contractual arbitration (arbitrato irrituale); in the absence of such a waiver, a contractual expert determination constitutes a wholly atypical institution having the nature of a contractual obligation whereby the parties identify a mechanism which, if utilised and brought to completion, enables them to overcome in binding terms a portion of the existing dispute through the creation of a new arrangement of interests dependent upon the third party’s determination, which the contracting parties undertake to respect.
A pure contractual expert determination is of a merely obligatory nature and does not preclude either party from commencing judicial proceedings having as their subject-matter also the portion of the dispute entrusted to the expert; such conduct amounts to a breach and exposes the party to all consequential liability in damages.
The exercise of the right effected through the act of ‘calling’ a pure contractual expert determination and the consequent commencement of proceedings which unfold in a protracted and continuous series of operations, in the manner contractually provided, constitute conduct (of prolonged performance of that contractual obligation) incompatible with the normative assessment of inertia on the part of the holder which, pursuant to art. 2934 cod. civ., justifies the running of the limitation period, and entail an interruption de die in diem for the entire duration of the operations comprising such expert determination, until its conclusion or the expiry of the time-limit contractually fixed for that purpose.