The principle of autonomy of the arbitration clause from the contract to which it pertains, as set out in Article 808 of the Code of Civil Procedure, does not operate when the defect affecting the contract is of a nature external to the contractual arrangement and common to both the contract and the clause, affecting the very capacity to contract; in such cases, the invalidity of the contract extends also to the arbitration clause, since the power to enter into the contract encompasses that of agreeing to the arbitration clause and, if the former is lacking, so too is the latter.
Where the main contract was never perfected due to the absence of a signature or of another essential element, no contractual bond capable of founding an arbitration clause that has not itself been independently agreed upon comes into existence; in such case, the clause is non-existent, since it cannot subsist autonomously without the support of the contract that incorporates it.
The nullities of the arbitration agreement referred to in Article 829(1) n. 1 of the Code of Civil Procedure are not limited to those deriving from defects of extrinsic form, but also include invalidities arising from the limits of arbitrability of the dispute and from cases of nullity, voidability or ineffectiveness that result in the absence, whether original or supervening, of the contractual will of the parties, as the foundation of the arbitrators’ decisional authority; in such cases, the court hearing the challenge, having found such decisional authority to be lacking, confines itself to declaring the nullity of the award and refrains from proceeding to the rescissory phase of the proceedings.
The arbitration clause referring to disputes arising from the contract to which it pertains must be interpreted, in the absence of an express contrary intention, as encompassing within the arbitral jurisdiction all and only the disputes that refer to claims having their causa petendi in the contract to which the clause is annexed, to the exclusion of those that have in it merely a historical premise.
The arbitration clause providing for the referral to the arbitral tribunal of disputes relating to the settlement of fees provided for by the agreement is not capable of establishing the adjudicatory power of the arbitral tribunal with respect to a claim for unjust enrichment under Article 2041 of the Civil Code, as it is to be regarded as extraneous both in causa petendi and in petitum to the contractual scope.
In proceedings challenging an arbitral award for nullity, the principle applies whereby the reversal, even partial, of the decision results in the setting aside of the ruling on costs, with a consequent power and duty of the court to renew in full, also of its own motion, the allocation of such costs in light of the final outcome of the case.