The issue arising from the objection of arbitration, whether institutional or contractual arbitration (arbitrato irrituale), raised before the ordinary court seised notwithstanding that the dispute has been referred to arbitrators, presents a question pertaining to the merits and not to jurisdiction or territorial competence, inasmuch as the relationship between judges and arbitrators does not concern the allocation of jurisdictional power between courts, and the effect of the arbitration clause consists in the waiver of jurisdiction and of judicial action.
The decision by which the ordinary court, in the presence of an objection based on an arbitration agreement, resolves the question thus raised by either terminating or not terminating the proceedings before it, constitutes a decision pronounced on a preliminary question of merit, inasmuch as it relates to the validity or interpretation of the arbitration agreement or arbitration clause, with the consequence that such ruling is appealable and, where no appeal is brought, becomes res judicata.