The order appointing an arbitrator issued pursuant to article 810 of the Code of Civil Procedure constitutes a measure substituting for contractual activity not exercised by the party, rendered through summary procedure of voluntary jurisdiction, without adversarial proceedings, and remains extraneous to the dispute to which the arbitration agreement refers. The legitimacy review of such measure falls within the competence of the arbitral tribunal itself in the context of verifying its own powers, and defects that may vitiate the appointment of arbitrators, if not identified by the arbitrators, are converted into defects of the award pursuant to article 829, No. 2, of the Code of Civil Procedure.
In exercising the power of substitute appointment pursuant to article 810 of the Code of Civil Procedure, the President of the Court assumes the same prerogatives as the parties and is subject to the same constraints of contractual origin, being called upon by law to implement the arbitration agreement in place of the parties. However, when the person designated in the arbitration clause does not accept the appointment and no indication for substitution is provided, the President is not bound to choose a person belonging to the same professional category as the originally designated arbitrator.
The action for nullity of an arbitral award constitutes a means of challenge subject to “restricted criticism” (a critica vincolata), the award being capable of challenge for nullity solely in relation to defects that find express and specific normative regulation in the exhaustive list set out in article 829 of the Code of Civil Procedure. Violation of rules of law may be alleged only within the restricted limits of article 829, paragraph 3, of the Code of Civil Procedure, circumscribed within the boundaries of violation of law that may be raised by appeal to the Court of Cassation pursuant to article 360, paragraph 1, No. 3, of the Code of Civil Procedure.
The defect of an award for lack of reasoning pursuant to article 829, paragraph 1, Nos. 4 and 5, of the Code of Civil Procedure, may be considered to exist only when the reasoning is entirely absent or is so deficient as not to permit understanding of the logical process that determined the arbitral decision, or contains irreconcilable contradictions in the body of the reasoning or the operative part such as to render the ratio of the decision incomprehensible.
Challenge of a court-appointed technical expert nominated by the arbitrator is admissible only in cases where abstention is mandatory for the judge pursuant to article 51 of the Code of Civil Procedure, the mere existence of reasons of convenience that entail for the judge only the faculty, and not the obligation, to abstain being insufficient.
In equity arbitration, pursuant to article 829, paragraph 2, of the Code of Civil Procedure, challenge for nullity of the award for violation of substantive law rules or for errores in iudicando is precluded when they have not resulted in non-observance of fundamental and mandatory rules of public policy. Such preclusion operates even when the arbitrators have applied rules of law considering them to correspond to the equitable solution of the dispute, the equity arbitration not being thereby transformed into arbitration at law.
Contrariety to public policy, for the purposes of article 829, paragraph 3, of the Code of Civil Procedure, must be identified in the final determination contained in the award and not in individual arguments supporting the decision. The notion of public policy expresses the ethical, economic, political and social principles that characterise the legal system in the various fields of social coexistence, involving the fundamental values of the national legal system that find synthesis in the Constitution for the protection of general interests.