Court of Bari, judgment of 7 September 2026, No. 4618

Since the referral of the dispute to arbitrators amounts to a waiver of recourse to judicial action and of the jurisdiction of the State, the plea of the arbitration agreement gives rise to a question of substance, concerning the construction and the validity of the submission agreement or of the arbitration clause, and constitutes a plea in the strict sense, to be raised within the time limits and in the forms proper to pleas on the merits.
The want of competence of the ordinary court in favour of the arbitral tribunal must be declared by judgment, the corresponding plea giving rise to a question of substance concerning the construction and the validity of the arbitration agreement.
Participation in assisted negotiation proceedings, being extra-judicial in nature, does not amount to a waiver of the arbitration clause, an implied waiver being discernible only where the party elects to apply to the ordinary courts.
Where the plea of the arbitration agreement and a counterclaim are raised at the same time, the former cannot be regarded as waived by reason of the formulation of the latter, the examination of which is ontologically conditional upon the plea not being upheld.
The alleged indeterminacy of the procedure for the appointment of the arbitrators is not a ground of nullity of an arbitration clause providing for arbitration, artt. 806 et seq. cod. proc. civ. being directly and immediately applicable.