The rules on procedural agreement under Article 38(2) of the Code of Civil Procedure are inapplicable in relation to the plea of an arbitration agreement, that provision referring exclusively to the derogable territorial jurisdiction of the ordinary court and not to the referral of the dispute to arbitrators.
The court seised is always required to verify the merits of the plea of arbitration, irrespective of any acceptance expressed by the claimant, and may not disregard that issue on the basis of a mere agreement between the parties.
The existence of an arbitration clause does not preclude the issuance of an order for payment (decreto ingiuntivo), since the summary phase benefits from a derogation from arbitral jurisdiction; however, in proceedings by way of opposition, where the plea of lack of jurisdiction on account of the existence of an arbitration clause is raised, the court is required to declare its lack of jurisdiction and to revoke the order for payment, referring the parties to the arbitral tribunal.
Where the ordinary court declares its lack of jurisdiction on account of the existence of an arbitration clause, the court is required to make an order as to costs, the mechanism of removal of the case from the court register without an order as to costs provided for by Article 38(2) of the Code of Civil Procedure not being applicable, that procedure operating exclusively in cases of derogable territorial jurisdiction.