Court of Rome, judgment of 20 July 2026, No. 11282

The objection based on an arbitration agreement is procedural in character and amounts to a question of jurisdiction, which must be raised, on pain of forfeiture, in the statement of defence filed in good time within the period laid down by art. 166 cod. proc. civ., the arbitrators' jurisdiction being excluded, as regards the dispute decided in the proceedings, if the objection is not raised.
Pursuant to art. 819 ter, co. 2, cod. proc. civ., as supplemented by the additive ruling of the Constitutional Court, the proceedings may continue before the competent forum by way of the translatio iudicii provided for by art. 50 cod. proc. civ., an institution applicable both where the ordinary court declines jurisdiction in favour of the arbitrators and in the converse case.
The regime of art. 38, co. 2, cod. proc. civ., concerning the agreement of the appearing parties to the forum indicated as territorially competent, cannot be extended to the case where the arbitrators' jurisdiction is objected to; accordingly, notwithstanding agreement with the objection based on the arbitration agreement, the court must verify whether this is a case in which the parties do not have the power freely to choose between determination of the case before the court and before the arbitrators.
An arbitration clause referring to the arbitral tribunal disputes arising in the interpretation or performance of the contract, including payments, encompasses a dispute concerning the consideration for the services performed.
Since the proceedings concern opposition to an order for payment (decreto ingiuntivo), the declaration that the arbitrators have jurisdiction must be made by a judgment setting aside the order for payment opposed and fixing a time limit for the resumption of the dispute before the competent arbitral tribunal.
Once the arbitration objection has been raised in the document instituting the opposition to the order for payment, its acceptance causes the opposed party to be the unsuccessful party as regards the proceedings as a whole and as a unit, even where the decision closing the proceedings rests on procedural grounds.