Proceedings challenging an arbitral award for nullity are proceedings of restricted scope, which may be brought only on the grounds of the errores in procedendo specifically provided for by art. 829, co. 1 cod. proc. civ. and for the arbitrators’ failure to observe the rules of law within the limits set out in co. 3 of the same article.
Proceedings challenging an award for nullity comprise two phases, one necessary and the other merely contingent: in the setting-aside phase (fase rescindente), directed to establishing the grounds of nullity of the award, the court of appeal may not make findings of fact; in the re-hearing phase (fase rescissoria), following annulment, the ordinary court reconstructs the facts on the basis of the evidence adduced.
Arbitral proceedings are governed by the principle of freedom of forms, so that, where the arbitration agreement is silent, it falls to the arbitrator to regulate the conduct of the proceedings, including by fixing peremptory time limits for the production of evidence, provided that notice thereof has been given to the parties and their right of defence safeguarded.
The principle of freedom of forms, laid down by art. 816-bis cod. proc. civ., finds an absolute limit in respect for the audi alteram partem principle and for the right of defence, the parties’ exercise of their evidential rights having to take place within the framework delineated by the arbitral tribunal, even in the absence of a predetermined system of procedural bars.
The failure to take into account documentary evidence filed after the close of the evidential and argument phase and after the matter was reserved for deliberation constitutes neither a breach of the audi alteram partem principle nor a defect in the reasoning of the award, the body of evidence gathered having by that stage become fixed.