The objection of arbitration based on an arbitration clause cannot be raised by the court of its own motion, but must be timely raised by the defendant party; in the absence of such objection, the case remains within the jurisdiction of the ordinary court, given that the basis of arbitral jurisdiction lies in the will of the parties, which alone permits derogation from the precept of Article 102 of the Constitution, constituting one of the possible ways of disposing, even in a negative sense, of the right to bring an action before a court enshrined in Article 24, paragraph 1, of the Constitution.
The parties, even in the presence of an arbitration clause, may opt for a decision by the ordinary court not only expressly, by means of an agreement equal and opposite to that reached by the arbitration agreement, but also tacitly, through the adoption of procedural conduct converging towards the exclusion of arbitral jurisdiction, notably by commencing proceedings before the ordinary court where this is met by the failure to raise the objection of arbitration.
The claimant party's acceptance of the objection of arbitration timely raised by the opposing party is not subject to procedural preclusions, and must be deemed admissible until the final submissions.
Unless the parties have expressly limited the effect of the arbitration clause to certain disputes, all disputes which have their origin in the corporate contract must be deemed referred to arbitral jurisdiction, even if they arose at a time subsequent to the termination of the contractual relationship between the parties, concerning persons who at the time of the proceedings no longer hold the position they held when the dispute arose.
A statutory arbitration clause which confers the power to appoint all arbitrators on a person external to the company and provides that, where the designated person does not act, the appointment must be requested from the president of the court within whose district the registered office is located, complies with the provisions of Articles 34-36 of Legislative Decree No. 5/2003 and, in particular, respects the requirement set out in Article 34, paragraph 2, of the same decree.