An arbitration clause does not preclude the issue of an order for payment by the ordinary court, given that proceedings for an order for payment are conducted without a hearing of the other party (inaudita altera parte), a procedure not contemplated in arbitral proceedings, but the objection of lack of jurisdiction based on the arbitration agreement must be assessed at the opposition stage.
The objection of lack of jurisdiction of the ordinary court based on an arbitration agreement constitutes a jurisdictional objection pursuant to Article 819 ter of the Code of Civil Procedure, by reason of the jurisdictional nature of the activity of arbitrators, which substitutes for the function of the ordinary courts.
The objection of lack of jurisdiction based on an arbitration agreement must be raised, on pain of forfeiture, in the statement of defence or in the notice of opposition, by express declaration of the party raising it.
For the purposes of classifying arbitration as ritual in nature, neither the conferral on the arbitrators of the power to decide in equity, nor the provision that the award shall not be subject to appeal, nor the dispensation from procedural formalities, is decisive, weight being given instead to terminological expressions consistent with the activity of adjudicating a dispute and to the reference to the rules on challenges to arbitral awards under Article 827 of the Code of Civil Procedure.
The upholding of an opposition to an order for payment based on the objection of arbitration entails a twofold decision: the upholding of the opposition on procedural grounds and the declaration of nullity of the order for payment on grounds of lack of jurisdiction of the ordinary court, with the consequence that the form of order (ordinanza) under Article 279(1) of the Code of Civil Procedure does not apply.