An arbitration clause, in order to have a mandatory character derogating from the jurisdiction of the ordinary court, must provide for recourse to arbitral proceedings on an exclusive basis; otherwise, it constitutes an optional and alternative remedy which the parties may freely avail themselves of, without excluding the jurisdiction of the ordinary court, alongside which the potestas iudicandi of the arbitrators operates.
An arbitration clause contained in standard contract terms drafted for an indefinite number of contractual relationships requires separate and specific approval pursuant to Article 1341(2) of the Civil Code, as it constitutes a clause derogating from jurisdiction which is deemed unfair under that same provision, and the plea relating to the exclusive forum requires the court to verify of its own motion compliance with that formal requirement.
A party that raises an objection to the jurisdiction of the ordinary court on the ground that the dispute falls within arbitral jurisdiction, while simultaneously bringing counterclaims in the same ordinary proceedings, impliedly excludes the binding and exclusive character of the arbitration clause, thereby affirming the jurisdiction of the ordinary court.