The decision of the court declining its own jurisdiction in favour of the arbitrators is not appealable, but may be challenged exclusively by means of an application for the determination of jurisdiction pursuant to arts. 42 and 43 cod. proc. civ.
A ruling of lack of territorial jurisdiction which contains no determination, not even an implicit one, as to arbitral jurisdiction does not preclude the party from raising anew the objection of lack of jurisdiction of the ordinary court in favour of the arbitrators before the court before which the proceedings are resumed; in such a case, no implicit res judicata arises as to arbitral jurisdiction, nor is the court before which proceedings are resumed under an obligation to raise the conflict of jurisdiction of its own motion pursuant to art. 45 cod. proc. civ.
The distinction between arbitration and contractual arbitration (arbitrato irrituale) rests upon the intention of the parties: in the former case, the intention is directed at obtaining an arbitral award capable of being declared enforceable and of producing the effects provided for by art. 825 cod. proc. civ.; in the latter, it is confined to entrusting to the arbitrator the resolution of the dispute by means of a contractual instrument. Neither the conferral upon the arbitrators of the power to decide according to equity, nor the stipulation that the award shall not be subject to appeal, nor the exemption from procedural formalities are decisive for the purposes of classification as contractual arbitration (arbitrato irrituale); on the contrary, weight must be given to the expressions used by the parties consistent with the activity of adjudication and to the provision for enforceability of the decision.
The arbitration clause is a contract producing procedural effects which is autonomous from the substantive transaction in which it is contained; its validity is, accordingly, independent of the validity of the principal contract, in application of the principle laid down by art. 808 co. 3 cod. proc. civ., which permits its survival even in the event of invalidity of the contract to which it is appended.
Professional engagement agreements entered into by an undertaking operating in the special sectors of public railway transport pursuant to Part III of d.lgs. 163/2006, having as their object legal advisory and assistance activities not functionally and inseparably connected in a means-to-end relationship with the typical activity of the special sector, are entirely excluded from the regime of the public contracts code and are governed by the general rules of civil law, without any limitation on the possibility of providing for arbitral jurisdiction over disputes concerning the validity, interpretation and performance of the contracts.