The presence of an arbitration clause for institutional arbitration in the contract at issue does not preclude the creditor from obtaining an order for payment from the ordinary court for the debt arising from the same contract. However, where the debtor against whom the order is made timely raises the objection of lack of jurisdiction of the ordinary court in favour of the arbitrators in proceedings to set aside the order, the court hearing the opposition, having ascertained the validity and applicability of the arbitration clause, is required to revoke the order for payment and to refer the parties to the arbitral tribunal contractually provided for.
A contractual clause which refers to a panel of three arbitrators, required to decide according to law, all disputes relating to the validity, interpretation, performance and termination of the contract, constitutes an arbitration agreement for institutional arbitration pursuant to Article 824-bis of the Code of Civil Procedure, given that the obligation for the arbitrators to observe the rules of substantive law reflects the paradigm of proceedings on the merits and the intention of the parties to obtain a decision having the effect of a judgment, rather than an amicable or settlement-based resolution of the dispute typical of contractual arbitration (arbitrato irrituale).
The costs of the proceedings to set aside an order for payment, in which the objection of arbitration has been upheld with consequent revocation of the order, must be borne by the party who applied for the order, given that the choice to resort to the summary payment procedure notwithstanding the presence of the arbitration clause is subject to the risk that such clause may be legitimately invoked by the debtor in the opposition proceedings.