Court of Bari, judgment of 22 June 2026, No. 3841

The existence of an arbitration clause providing for arbitration does not preclude the competence of the ordinary courts to issue an order for payment (decreto ingiuntivo), since arbitral proceedings do not contemplate the issue of ex parte orders; however, once opposition proceedings are commenced and the arbitral jurisdiction is duly raised as a plea, the competence of the ordinary court ceases and the court must declare the opposing order for payment null and void and refer the dispute to the arbitrators.
An arbitration clause providing for arbitration gives rise to a question of competence of the ordinary court; conversely, a clause providing for contractual arbitration (arbitrato irrituale) does not raise a question of competence but one of substance and merely renders the claim inadmissible, provided the opposing party duly raises the plea in a timely manner, as the exception is of a substantive rather than procedural nature.
A plea of arbitral jurisdiction, which affects the competence of the ordinary court, must be raised, on pain of forfeiture, in the first defence of the defendant; in opposition to an order for payment proceedings, where the procedural positions of the parties are reversed, the document equivalent to the statement of defence is the notice of opposition pursuant to art. 645 cod. proc. civ., in which the opposing party must accordingly raise the plea of arbitral jurisdiction.
The revocation of the opposed order for payment, consequent on the declaration of lack of competence of the ordinary court in favour of arbitrators, results in the party that brought the summary proceedings in respect of a dispute devolved to arbitral jurisdiction being regarded as the substantially unsuccessful party for the purposes of costs; the subsequent procedural conduct of the opposing party in adhering to the plea does not alter that allocation.