An arbitral tribunal lacks the power to appoint a special curator under Article 78 of the Code of Civil Procedure, since such procedure belongs to voluntary jurisdiction and involves public interests that cannot be arbitrated. An arbitration clause under Article 806 of the Code of Civil Procedure comprehends exclusively contentious disputes between parties, with exclusion of matters of voluntary jurisdiction.
The omission or invalid appointment of a special curator, where the legal prerequisites exist, constitutes an incurable defect in the constitution of the procedural relationship, such as to entail nullity of the entire arbitral proceeding for violation of the right of defence under Article 24 of the Constitution. The defect is detectable at any state and degree of proceedings.
Non-observance of the principle of adversarial procedure in commencement of arbitral proceedings constitutes grounds for nullity and not inexistence of the award. The court of appeal, after having declared the nullity defect, cannot proceed to rescissory judgment (giudizio rescissorio), being required to limit itself to accepting the challenge without deciding the dispute on its merits and stopping at the rescinding phase.
The procedure for appointment of a special curator under Article 78 of the Code of Civil Procedure belongs to voluntary jurisdiction and remains such even when the judge proceeding in the case of pending proceedings decides on the relevant application. The procedure is underpinned by public interests, as evidenced by the standing attributed to the public prosecutor under Articles 79 and 80(2) of the Code of Civil Procedure.