The inclusion of an arbitration clause does not preclude recourse to summary proceedings for the obtaining of an order for payment, since the objection of arbitration is not capable of being raised of the court’s own motion but only on application by a party and, in the summary phase of payment order proceedings, no dispute characterised by adversarial proceedings yet exists which could be referred to the arbitrators.
In opposition proceedings against an order for payment, ordinary contentious proceedings are commenced which necessarily entail referral of the dispute to the arbitral tribunal where a validly agreed arbitration clause exists, with the consequent declaration of lack of jurisdiction of the ordinary court and revocation of the order for payment issued.
The objection of arbitration, as a defence in the strict sense pursuant to Article 38 of the Code of Civil Procedure, must be raised by the interested party at the first available opportunity for defence and may not be raised of the court’s own motion.