The objection based on an arbitration agreement in regular arbitration has a procedural character and constitutes a question of jurisdiction pursuant to Article 819-ter of the Code of Civil Procedure. The objection must be raised, under penalty of forfeiture, in the first defensive act of the defendant party, it not being possible to assimilate arbitral jurisdiction to functional jurisdiction, the former being founded exclusively upon the will of the parties.
The presence of an arbitration clause does not prevent requesting and obtaining from the ordinary court an injunctive decree for the credit arising from the contract. The right remains to the enjoined party to object to arbitral jurisdiction in opposition proceedings, with consequent obligation upon the court to revoke the injunctive decree and refer the parties before the sole arbitrator or arbitral tribunal.
When in opposition proceedings to an injunctive decree arbitral jurisdiction is objected to, the presuppositions fixed in the arbitration agreement are verified and the jurisdiction of the court previously seised ceases. The court must revoke the injunctive decree and refer the parties before the arbitral tribunal or the sole arbitrator, according to what is provided by the arbitration clause.
The favor for arbitral jurisdiction contained in Article 808-quater of the Code of Civil Procedure refers only to cases in which the interpretative doubt concerns the quantification of the matter devolved to the arbitrators by the relative agreement and not also the arbitral choice itself made by the parties. The favor arbitrali does not operate when the very existence of the intention to devolve the dispute to arbitrators is disputed.
The jurisdiction of arbitrators is not excluded by the pendency of the same cause before the court, nor by the connection between the dispute referred to them and a cause pending before the court pursuant to Article 819-ter of the Code of Civil Procedure. The objection of lack of jurisdiction of the court by reason of the arbitration agreement must be raised, under penalty of forfeiture, in the statement of defence.
The court which declares its own lack of jurisdiction in favour of the arbitrator, closing the proceedings before itself, is bound to provide for judicial costs, it not being possible to remit the relative pronouncement to the court declared competent. Procedural costs must be regulated by the court which divests itself of jurisdiction before referral of the cause.