The arbitration clause does not constitute an ancillary term of the contract in which it is contained, but constitutes a juridical act endowed with its own individuality and autonomy. It follows that the validity of the arbitration clause must be assessed independently, and it may not be regarded as invalid by derivation from the alleged simulated, void or unlawful character of the transaction to which it relates. The determination of the simulated character, whether absolute or relative, of the contract containing the arbitration clause falls within the potestas iudicandi of the arbitral tribunal vested with jurisdiction by the clause itself.
In the matter of the application for the determination of jurisdiction, recourse to arbitration by means of the conclusion of a submission agreement or an arbitration clause does not conflict with the fundamental right of access to a court, nor does it entail, of itself, a waiver of the guarantees under art. 6 ECHR, the limited availability of which is a matter for party autonomy, with the consequent need to distinguish between voluntary arbitration and compulsory arbitration.
In proceedings for the validation of a notice to quit, the objection of lack of jurisdiction of the ordinary court in favour of the arbitral tribunal by virtue of an arbitration clause may be raised as early as the hearing of appearance, but its examination in the summary phase is conducted solely for the purposes of the decision on the application for interim relief, whereas the question of jurisdiction must be decided in the ensuing proceedings on the merits conducted on full cognisance. An application for the determination of jurisdiction brought against a decision on jurisdiction adopted at the conclusion of the summary cognisance phase of proceedings for the validation of a notice to quit is accordingly inadmissible.