In the matter of an application for the determination of jurisdiction, where an arbitration clause and a jurisdiction clause coexist within the same contract, the court is bound to reconstruct the common intention of the parties according to the canons of construction set out in artt. 1362 ff. cod. civ., coordinating the two clauses with a view to the preservation and overall interpretation of the contract, within the meaning of artt. 1363 and 1367 cod. civ.; it follows that, where the clause conferring jurisdiction on the ordinary court has been the subject of specific written approval whilst the arbitration clause has not, and the jurisdiction clause refers to ‘any dispute’, the intention of the parties to submit disputes to the state courts must be deemed to prevail, the arbitral provision being devoid of exclusive character.
In proceedings for the determination of jurisdiction, the Court of Cassation is vested with the power and the duty to examine directly the procedural documents and the contractual instruments in order to ascertain the existence, validity and scope of the arbitration clause, acting as a court also of fact, so that the interpretation of the contract and of the parties’ intention to arbitrate is entrusted to its direct assessment and not merely to review on points of law.
Article 808-quater cod. proc. civ., according to which, in case of doubt, an arbitration agreement is to be construed in the sense that arbitral jurisdiction extends to all disputes arising from the contract or the relationship to which the agreement refers, does not operate as an automatic residual criterion, but presupposes that the actual intention of the parties to refer disputes to arbitrators has been established; accordingly, that provision does not apply where, from an overall construction of the contractual clauses, it appears that the parties intended to confer cognisance of disputes on the ordinary court.