The plea of arbitration is procedural in nature and raises a question of competence which, pursuant to Article 38(1) of the Code of Civil Procedure, must be raised, on pain of preclusion, in the statement of defence filed in due time, in accordance with Article 819-ter(1) of the Code of Civil Procedure.
Arbitral jurisdiction is not comparable to functional jurisdiction, since it is founded solely on the will of the parties, who remain free to choose whether to submit the dispute to arbitrators, including through procedural conduct tacitly converging towards the exclusion of arbitral jurisdiction, by commencing ordinary proceedings and failing to raise the plea of arbitration.
Pursuant to Article 819-ter(2) of the Code of Civil Procedure, as supplemented by the additive judgment of the Constitutional Court No. 223/2013, proceedings may continue before the competent court through the translatio iudicii mechanism under Article 50 of the Code of Civil Procedure, both where the ordinary court declares its own lack of jurisdiction in favour of the arbitrators and in the converse situation.
The rule under Article 38(2) of the Code of Civil Procedure, concerning the agreement of the parties appearing to the indication of the court having territorial jurisdiction, does not extend to cases in which the jurisdiction of the arbitrators is raised, since arbitral jurisdiction is not left entirely within the parties' free disposal and is subject to limitations such as the arbitrability of the dispute.
Notwithstanding the respondent party's agreement with the plea of arbitration, the court must verify whether the case falls within one of the situations in which the parties do not have the power to choose freely between determination of the case before the court and before the arbitrators, such as the nullity of the arbitration clause for breach of mandatory rules.
The non-arbitrability of the dispute constitutes the sole ground on which the lack of jurisdiction of the arbitrators may be raised by the court of its own motion pursuant to Article 817(2) of the Code of Civil Procedure.
In proceedings by way of opposition to an order for payment, where arbitral jurisdiction is declared by virtue of an arbitration clause, the decision must be adopted by way of a judgment revoking the order for payment.
Where the order for payment, following opposition and upon acceptance of the plea of arbitration, is revoked without the revocation being accompanied by a decision on the merits of the claim, the successful party for the purposes of the allocation of costs must be identified as the opposing party, irrespective of the claimant's agreement with the plea of arbitration.