Court of Appeal of Bologna, judgment of 27 August 2026, No. 1956

Standing to rely on the nullity of the award is not subject to any bar arising from the conduct of the party who contributed to bringing it about, the prohibition on venire contra factum proprium not applying in such a case, provided that the nullity is raised in the first available pleading thereafter, in accordance with the time limit laid down by art. 829, co. 2, cod. proc. civ.
Where the arbitration clause in the articles of association provides that the arbitral tribunal is to decide in contractual arbitration (arbitrato irrituale) ex aequo et bono and makes amendments to the instrument of incorporation introducing or removing arbitration clauses subject to the approval of shareholders representing a qualified majority of the capital, the parties appearing in the arbitral proceedings cannot authorise a change in the nature of the arbitration from contractual arbitration ex aequo et bono to arbitration proper according to law.
Considerations of procedural economy or the alleged strengthening of safeguards cannot override the specific provision of the articles of association as to the nature of the arbitration.
An award rendered at the conclusion of an arbitration whose nature has been changed in breach of the arbitration clause in the articles of association is partly void pursuant to art. 829, co. 1, no. 4, cod. proc. civ., having been rendered outside the limits of the arbitration agreement.
A declaration that the award is partly void entails, as an automatic consequence and without any need for an examination of the merits, the collapse of the order to pay and the disappearance of the instrument by virtue of which the payments were made, so that a claim for restitution of the sums paid in performance of the award is not subject to the limit laid down by art. 830 cod. proc. civ.