Court of Bologna, judgment of 22 June 2026, No. 5125

The activity of arbitrators in arbitration proceedings is jurisdictional in nature and substitutive of the function of the ordinary courts; consequently, the question whether a dispute falls within the cognisance of arbitrators or of the ordinary court constitutes a question of competence, not of jurisdiction.
A plea of arbitral jurisdiction, as a plea going to competence, must be raised on pain of forfeiture in the first defence of the party; in opposition to an order for payment proceedings, the first defence of the opposing party — who occupies the substantive position of defendant in such proceedings — is the notice of opposition pursuant to art. 645, para. 1, cod. proc. civ.
An arbitration clause, once duly and timeously raised by the opposing party, is not tacitly waived he subsequent filing of supplemental briefs or the conduct of defence in the already pending proceedings; such activities constitute the exercise of procedural rights imposed by the framework of the ordinary proceedings already commenced and do not express an intention to renounce the arbitral forum.
Pursuant to art. 808-quater cod. proc. civ., where there is doubt as to the scope of the arbitration agreement, it is to be interpreted as extending the arbitral jurisdiction to all disputes arising from the contract or the relationship to which the agreement relates; this interpretive criterion of favour for arbitration requires that the arbitration clause be given the widest scope consistent with the wording of the agreement.
The upholding of a plea of arbitral jurisdiction results in the ordinary court lacking competence, the revocation of the opposed order for payment, and the referral of the dispute to arbitration; the resulting costs are borne by the party that brought the summary proceedings in respect of a dispute devolved to arbitrators, as the substantively unsuccessful party.