An arbitration clause contained in a contract is deemed to have been implicitly waived by the parties through facta concludentia where both parties have had recourse to the ordinary courts without raising the defence of arbitration.
The defence of arbitration is a defence in the strict sense, which cannot be raised by the court of its own motion; accordingly, in the absence of a formal objection raised by a party in the statement of opposition to a payment order, the court may not declare its own lack of jurisdiction in favour of the arbitral tribunal.
An application for a payment order does not, of itself, amount to a waiver of the arbitration clause, since the arbitral tribunal has no power to issue payment orders; the existence of an arbitration clause does not automatically preclude the jurisdiction of the court seized in summary proceedings.