The ordinary court is always competent to issue an order for payment (decreto ingiuntivo) notwithstanding the existence of an arbitration clause, that power not being available to arbitrators; however, once opposition has been brought and the arbitral competence pleaded in due time, the potestas iudicandi of the court seised comes to an end and that court must set aside the order for payment and refer the parties to the arbitral tribunal or to the sole arbitrator.
The plea of the arbitration agreement lies in the exclusive discretion of the opposing party and must be formulated in its first pleading.
In construing the arbitration agreement, regard must be had not only to the literal meaning of the words but also to the parties’ overall conduct, including conduct subsequent to the conclusion of the contract, under art. 1362 cod. civ.
The concurrent reference, in the same clause, to a State forum and to an arbitral tribunal does not give rise to any incompatibility, the designation of the forum being to be understood as fixing the seat of the arbitration under art. 816 cod. proc. civ. and as identifying territorial competence only for those disputes not referred to arbitrators, such as an application for an order for payment.
The extinction, for the parties’ inactivity, of earlier arbitral proceedings does not amount to a waiver, express or tacit, of the arbitration clause, which remains fully valid and effective, where in the extinguished proceedings neither party disputed its validity or the arbitrators’ competence.
A tacit waiver of the arbitration clause operates only in the proceedings in which it is relied upon and does not extend to other proceedings, including future ones, to which the clause attaches, unless the parties have definitively waived the clause as a whole, by an agreement satisfying the requirements of form and substance proper to an agreement terminating the effects of the arbitration agreement.
The bringing of a counterclaim does not amount to a waiver of the plea of the arbitration agreement, the examination of the counterclaim being ontologically conditional upon that plea not being upheld.