The plea of arbitration agreement, as a plea of lack of jurisdiction, is subject to the regime of art. 38 final paragraph of the Code of Civil Procedure, according to which questions of jurisdiction must be decided solely for the purposes of jurisdiction based on what appears from the case documents and, when made necessary by the defendant's plea or the court's observation, summary information having been obtained, excluding any possibility of conducting instruction according to the rules of the instruction phase for the purpose of decision on the merits.
The arbitration clause establishing institutional arbitration falls within the unfair terms governed by art. 1341 paragraph 2 of the Civil Code and requires specific written approval when inserted in general contract conditions unilaterally prepared by one contracting party to regulate an indeterminate series of relationships.
The requirement of specificity and separateness imposed by art. 1341 paragraph 2 of the Civil Code is not satisfied by cumulative numerical reference and indiscriminate signing of all or most of the general contract conditions, only some of which are unfair, the provision requiring a drafting technique suitable to draw the attention of the weaker contracting party to the meaning of clauses unfavourable to them.
In interpreting the arbitration agreement, doubt about the content of the clause must be resolved in favour of institutional arbitration when the clause contemplates decision by arbitration according to arbitration rules without expressly providing pursuant to art. 808-ter of the Code of Civil Procedure that disputes be resolved by arbitrators through contractual determination.