Court of Appeal of Brescia, judgment of 4 September 2026, No. 812

An award by which the arbitrators decline their potestas iudicandi on the ground that the appointment of the members of the tribunal is void, having been made in breach of mandatory requirements, is not a decision declining jurisdiction, since an irregularly constituted tribunal cannot be equated with a court lacking jurisdiction; it follows that the translatio iudicii provided for by arts. 50 and 819 ter cod. proc. civ., read together, does not apply and that the resumption of the arbitral proceedings before the ordinary court is inadmissible.
An award declaring that the arbitral tribunal lacks potestas iudicandi is, where it is not challenged, final, with the consequence that the interested party may only challenge it in the forms provided by law or bring fresh proceedings before the ordinary court.
The document by which a party purports to resume the arbitral proceedings before the ordinary court is, where it satisfies all the formal and substantive requirements of an originating process and is accompanied by a fresh power of attorney, capable of commencing independent proceedings, even if the party has stated its intention to preserve the substantive and procedural effects of the claim brought in the arbitration, provided that it is served on the opposing party personally, service on the lawyer acting in the arbitral proceedings not sufficing for that purpose, since the proceedings are new and distinct and not a continuation of the arbitration.