The presence of an arbitration clause does not deprive the creditor of the right to seek and obtain an order for payment from the ordinary court, since the summary stage does not involve any adversarial process; where, however, in the subsequent opposition proceedings the debtor objects in good time to the existence of the clause, the ordinary court, having verified its validity and noted the absence of any disagreement on the part of the other party, must decline jurisdiction and set aside the order for payment opposed.
The foundation of any arbitration lies in the parties’ free choice: just as they may choose to submit the dispute to arbitrators rather than to the ordinary court, so they may also opt for a decision by the latter, not only expressly, by an agreement equal and opposite to that reached in the arbitration agreement, but also tacitly, by adopting procedural conduct converging towards the exclusion of the arbitrators’ jurisdiction, in particular by bringing the proceedings before the ordinary court coupled with the failure to raise the arbitration objection.
A person bound by an arbitration clause is always at liberty to apply to the ordinary court, which retains jurisdiction to decide the dispute if the defendant does not raise a specific and timely objection, the court being precluded from raising the existence of an arbitration clause of its own motion.
An objection as to the arbitrators’ jurisdiction duly raised in the first pleading, followed by the express agreement of the other party, expresses the parties’ concurrent intention not to withdraw the case from the private adjudicator initially designated and brings about the cesser of the potestas iudicandi of the court seised in favour of the arbitrator’s jurisdiction.
The declaration by the ordinary court that it lacks jurisdiction in favour of the arbitrator entails the lapsing and setting aside of the order for payment, any further question going to the merits being subsumed and referred to the arbitral forum, before which the case must be resumed within the time limit fixed.