An arbitration award is null when there is applied an arbitration clause inserted in the company's articles of association subsequent to the facts which are the object of the dispute, and when the party requesting arbitration no longer held the status of member at the time of introduction of the clause. The arbitrator lacks the power to adjudicate for want of an arbitration agreement applicable ratione temporis.
The nullity of an award for want or inapplicability of the arbitration clause constitutes an incurable defect which may be raised of the court's own motion in proceedings for challenging the award, independently of any previous allegation thereof in the arbitration proceedings.
In cases of defect deriving from want of an arbitration agreement or arbitration clause, or from the exclusion of arbitrability of the subject matter of the dispute, which are equivalent to non-existence of the award, there is no application of the general principle of conversion of grounds of nullity into grounds of challenge pursuant to Article 828 of the Code of Civil Procedure, with the consequent preclusion of the power of the Court of Appeal to proceed to a judgment on the merits.
An arbitration clause in the articles of association applies exclusively to disputes relating to facts subsequent to its introduction and between persons who hold the status of member at the time of its provision. The effectiveness of the arbitration clause is limited ratione temporis and ratione personae.
Want of an arbitration clause applicable to the concrete case entails absence of the arbitrator's power to adjudicate and determines the nullity of the award for defect of the procedural prerequisites of arbitration.