The objection based on arbitration is subject to the regime governing defences on the merits which cannot be raised by the court of its own motion and must be raised in the first pleading, so that it is raised in time if put forward, in proceedings opposing an order for payment, in the writ of opposition.
The broad wording by which an arbitration clause identifies the disputes referred to arbitration, extending it to all those which may arise between the parties in relation to and as a consequence of the contract, does not permit a restrictive construction and results in the reference to arbitrators of all disputes concerning the performance of the contract and the discharge of the obligations arising from it, including those concerning payment of the consideration.
The subject matter of the dispute may be decided by arbitrators where it does not concern non-disposable rights, pursuant to art. 806, co. 1, cod. proc. civ.
An agreement for contractual arbitration (arbitrato irrituale) requires, pursuant to art. 808 ter cod. proc. civ., an express provision in writing which, by way of derogation from art. 824 bis cod. proc. civ., provides for the dispute to be settled by contractual determination; in the absence thereof, the provisions governing arbitration apply.
In order to distinguish arbitration from contractual arbitration (arbitrato irrituale), the arbitration clause must be construed by reference to its wording, to the common intention of the parties and to their conduct as a whole, the absence of any reference to the formalities of arbitration not being conclusive in favour of contractual arbitration, account having to be taken of the greater guarantees afforded by arbitration as regards the enforceability of the award and the regime for challenging it.
A provision to the effect that the decision is to be taken by the arbitrators leads, in the absence of further elements, to the characterisation of the arbitration as arbitration proper.
Once the validity and effectiveness of the arbitration clause has been recognised, the claim brought before the ordinary court must be declared inadmissible (improponibile) and the order for payment set aside; art. 50 cod. proc. civ. applies to the preservation of the substantive and procedural effects of the original claim, with the grant of a three-month time limit for re-commencing the proceedings before the arbitrators, running from notification of the decision.