In matters of challenge to an arbitral award, the reference to the public policy proviso made by art. 829, co. 3, cod. proc. civ. must be construed restrictively, as a reference limited to the fundamental and binding rules of the legal order, a weakened notion of public policy coinciding with the whole body of mandatory rules being excluded at the outset; a ground alleging breach of a mandatory rule falling outside that narrow sphere is therefore inadmissible.
A challenge to an award founded upon questions relating to the arbitral or contractual nature of the arbitration is inadmissible where those questions are raised for the first time in the challenge proceedings, never having previously been raised in the course of the arbitration under art. 817 cod. proc. civ.
The inadmissibility of a challenge to an award for non-observance of rules of law, where the parties have authorised the arbitrators to decide ex aequo et bono, also arises where the arbitrators have in fact applied rules of law, considering them to correspond to the equitable solution of the dispute, arbitration ex aequo et bono not being thereby transformed into arbitration according to law.
In arbitration ex aequo et bono, where it is not alleged in the challenge proceedings that the arbitrators wholly lacked potestas iudicandi by reason of excess of power resulting from their going beyond the limits set by the parties to their power of decision, the court hearing the challenge is not required to verify the actual application of equitable criteria in deciding the dispute, the proper exercise of those powers not being reviewable.
A decision by which the arbitrators, deciding ex aequo et bono, merely take account of a statutory provision while reaching their ruling by an autonomous course of reasoning, independent of the various legal references put forward by the parties in the arbitration, cannot be regarded as having been made outside the arbitration agreement.
The exercise by the arbitrators of the power of legal characterisation proper to an adjudicator does not infringe the adversarial principle, nor does it constitute a ruling going beyond the parties’ claims, where the questions considered autonomously were the subject of argument between the parties in the course of the arbitration.
The ground of nullity of an award laid down by art. 829, co. 1, n. 10, cod. proc. civ. concerns the case in which the arbitrators have disposed of the proceedings by a procedural ruling, asserting the existence of a procedural bar which in fact does not exist, whereas that laid down by n. 12 concerns the failure to rule solely with reference to questions going to the merits.