A preliminary objection based on an arbitration clause timely raised in opposition to an injunctive decree, when the arbitration is of a regular nature, constitutes a question of jurisdiction pursuant to Article 819-ter of the Code of Civil Procedure. The regular nature of arbitration entails that the objection relating to the arbitration clause pertains to the sphere of jurisdictional competence.
The presence of a validly operating arbitration clause entails the nullity of the injunctive decree issued by the ordinary court and the simultaneous referral of the dispute to the judgment of the arbitrator designated by the arbitration agreement. The injunctive decree is vitiated by nullity when the substantive relationship is governed by an arbitration clause which devolves the matter in contention to arbitral cognizance.
The adherence of the defendant to the objection of lack of jurisdiction founded on an arbitration clause does not determine reciprocal defeat nor configure the hypotheses of set-off of procedural costs pursuant to Article 92 of the Code of Civil Procedure. Procedural conduct consisting in adherence to the objection based on the arbitration agreement does not assume relevance for the purposes of regulation of costs of litigation.
The injunctive action brought in the presence of an operating arbitration clause exposes the applicant to the risk that such clause may be legitimately invoked by the enjoined debtor in opposition proceedings. The choice to seise the ordinary court notwithstanding the devolution of the dispute to arbitrators does not justify the set-off of procedural costs in case of acceptance of the objection based on the arbitration agreement.