Procedural conduct incompatible with the will to apply an arbitration clause, such as failure to activate the arbitral tribunal for disputes falling within the scope of application of the arbitration clause, request for territorial lack of jurisdiction for lis pendens rather than arbitration exception, and subsequent request for consolidation of proceedings, entails tacit waiver of the right to raise lack of jurisdiction of ordinary courts in favour of arbitration.
An arbitration clause, insofar as it contains a restriction on the parties' right to resort to ordinary courts, must be interpreted restrictively, in the sense of optionality rather than exclusivity, when express provision of the exclusive character of arbitral jurisdiction is lacking.
Generic and late reference to conclusions containing the arbitration exception, made after contradictory procedural conduct and without deposit of specific concluding memorandum, does not serve to revive the exception of lack of jurisdiction for arbitration previously compromised by incompatible procedural conduct.