Court of Modena, judgment of 27 July 2026, No. 1053

A dispute concerning the performance of the contractual obligations and the right to payment of the balance, as well as the defence of non-performance raised by the other party, falls within the objective scope of an arbitration clause referring to arbitrators the disputes relating to the validity, performance, interpretation and termination of the contract.
The operation of the arbitration clause is not excluded by the fact that the defence of non-performance has its factual origin in relations with third parties who are strangers to the arbitration agreement, provided that the dispute is pending exclusively between the parties to the contract and retains an intrinsically contractual nature.
The existence of an arbitration clause does not preclude the granting of an order for payment (decreto ingiuntivo); where, however, the debtor opposes the order relying on the arbitration agreement, the court hearing the opposition must confine itself to verifying whether the clause is operative and, if so, decline cognizance in favour of the arbitral tribunal, revoking the opposed order for payment without ruling on the merits of the claim.
An ordinary court which declares its own lack of competence by reason of an arbitration clause providing for arbitration must not rule on the costs of the order-for-payment stage or on those of the opposition proceedings, that decision belonging exclusively to the arbitrators before whom the dispute will be brought.