The existence of an arbitration clause in the contract between the parties does not preclude the jurisdiction of the ordinary court to issue an order for payment, although such jurisdiction ceases where opposition proceedings are commenced in which the objection of arbitral jurisdiction is raised as a preliminary matter, on the basis of a valid arbitration clause.
Where a proper and timely objection of arbitration is raised in proceedings opposing an order for payment, the judge designated in the opposition proceedings must declare not only his own lack of jurisdiction but also the supervening lack of jurisdiction of the judge who issued the order for payment subject to opposition, and must accordingly declare the order null and void while simultaneously referring the dispute to arbitration, doing so by way of judgment.
The standing of a creditor to bring an application for an order for payment notwithstanding the existence of an arbitration agreement, together with the duty of the court to issue the relevant order—whose validity and effectiveness subsist until opposition is brought—does not constitute a case of losing in the proper sense so as to justify an order for costs in respect of the payment order phase.