The presence of an arbitration clause in the contract from which the claim arises does not preclude the creditor from requesting and obtaining from the ordinary court an injunction order (decreto ingiuntivo), given that the rules governing arbitration proceedings do not provide for the issuing of orders without hearing the other party (inaudita altera parte); however, where the debtor served with the injunction lodges an opposition raising the arbitral jurisdiction, ordinary proceedings on the merits are initiated in which, once the dispute has arisen, the conditions for the jurisdiction of the ordinary court cease to exist, and the court must declare its own lack of jurisdiction, revoke the injunction order and refer the parties to the arbitrators.
The declaration of lack of jurisdiction of the ordinary court in favour of the arbitrators, following the plea of arbitration raised in opposition to the injunction order, must be made by judgment and not by order, since the judge hearing the opposition, in the exercise of his functional and mandatory jurisdiction, must simultaneously declare the nullity of the injunction order, revoke it and set a peremptory time limit for the resumption of the proceedings before the arbitral tribunal.
By virtue of the declaration of unconstitutionality of Article 819-ter, paragraph 2, of the Code of Civil Procedure, insofar as it excluded the application to the relationship between arbitration and court proceedings of rules corresponding to Article 50 of the Code of Civil Procedure, the court which declares its own lack of jurisdiction in favour of the arbitrators must grant the parties a time limit for the resumption of the proceedings before the arbitral tribunal, thereby allowing the preservation of the substantive and procedural effects of the claim.
In the event of revocation of the injunction order due to acceptance of the plea of arbitration, the costs of the opposition proceedings must be borne by the unsuccessful party in application of the principle of costs following the event, without any relevance being attached, for the purposes of set-off, either to the claimant’s acceptance of the plea of lack of jurisdiction or to the circumstance that the respondent could have waived the effects of the arbitration clause, neither of these hypotheses constituting any of the exceptional cases exhaustively provided for by Article 92 of the Code of Civil Procedure.