Court of Appeal of Bari, judgment of 31 August 2026, No. 1067

An application to set aside an award does not give rise to an ordinary appeal on the merits of the arbitral decision, but remains confined to the grounds specifically listed in art. 829 cod. proc. civ.
Where the arbitration agreement was concluded before the entry into force of d.lgs. 40/2006 and the arbitral proceedings were commenced thereafter, art. 829 co. 3 cod. proc. civ. applies to arbitral proceedings commenced after the reform, but the law to which that provision refers, for the purpose of determining whether an application to set aside for breach of the rules of law governing the merits is admissible, is the law in force at the time the agreement was concluded; it follows that, in the case of an arbitration clause governed by the ordinary rules and predating the amendment, in the absence of any stipulation by the parties the award may still be challenged for breach of the rules of law, unless the parties authorised the arbitrators to decide ex aequo et bono or declared the award to be final.
The contradictoriness which is relevant for the purposes of the nullity of the award under art. 829 co. 1 n. 11 cod. proc. civ. does not coincide with the defect of reasoning referred to in art. 360 co. 1 n. 5 cod. proc. civ., but arises where the conflict appears between the several components of the operative part, or between the reasons and the operative part, whereas an internal contradiction between the various parts of the reasons is relevant only if it prevents the reconstruction of the logical and legal reasoning underlying the decision by reason of the total absence of reasons answering their functional model.
Arbitral jurisdiction must be assessed by reference to the claim brought and to the legal title relied upon by the claiming party, and is not lost merely because, upon examination of the merits, the adjudicating body holds the right asserted on the basis of that title to be non-existent or unproven.
The dismissal on the merits of a contractual claim, based on the construction of the contractual title relied upon by the claimant, does not amount to a decision rendered extra compromissum, nor does it entail the loss, whether retroactive or logical, of arbitral jurisdiction.
The parties' procedural conduct, consisting in the plea of an arbitration agreement and in the subsequent concurrence therein, as well as the order of the ordinary court taking note of the referral of the dispute to the arbitrators, cannot constitute an autonomous source of the arbitration agreement, but is relevant as an element of the procedural course by which a dispute already presented as relating to the contract containing the arbitration clause was referred to the arbitrators' jurisdiction.
A claim for indemnity for unjust enrichment, brought in the alternative to the claim for performance and pleaded as a consequence of the same events arising out of the contractual relationship containing the arbitration clause, falls within the arbitrators' jurisdiction.
Proceedings to set aside an award under art. 829 cod. proc. civ. are rescissory in nature and do not permit, save in the cases exhaustively provided for, a review of the merits of the dispute or a fresh assessment of the evidence, except to the extent that the arbitral decision is founded on a fact procedurally non-existent, on evidence not adduced, or on a statement wholly unconnected with the body of evidence.
For the purposes of the nullity of the award, a distinction must be drawn between an error of perception as to the objective content of a document, which is relevant only if immediately recognisable and decisive, and the construction of the legal and factual meaning of the documents adduced, which pertains to the assessment of the evidence and cannot be converted into a ground of challenge.
Even where an application to set aside the award for breach of the rules of law is admissible, the review carried out by the court hearing the challenge remains confined to verifying whether the statutory canons of contractual construction were in fact disregarded, it not being sufficient to set against the reading adopted in the award a different construction of the same contractual text.
The assessment of the admissibility, relevance and decisiveness of the means of evidence belongs to the arbitral tribunal and may become relevant for the purposes of the nullity of the award only where it results in an actual infringement of the right to be heard or of the right of defence, and not where the party merely challenges the arbitrators' finding of irrelevance or superfluity.
The award cannot be set aside where the part challenged rests, in addition to the reasoning impugned, on a distinct and self-sufficient ratio decidendi capable in itself of supporting the decision.