In proceedings to set aside an arbitral award on grounds of nullity pursuant to Article 829 of the Code of Civil Procedure, the court hearing the challenge is not called upon to re-examine the merits of the arbitral decision, but is required exclusively to verify the existence of the defects exhaustively listed by the provision, such proceedings being characterised as a challenge confined to specified grounds, limited to errors in procedendo and, within the limits prescribed, to errors in iudicando, with the consequence that a fresh examination of the merits of the dispute is possible only where the award has been declared null and void and where such re-examination is permitted.
In proceedings to set aside an arbitral award, the requirement of necessary specificity of the grounds of challenge must be observed with particular rigour, understood in a more stringent sense than in ordinary appellate proceedings under Article 342 of the Code of Civil Procedure, given that the rescinding phase of the challenge proceedings is comparable to an appeal to the Court of Cassation, with the consequence that both the court and the respondent must be able to ascertain whether the complaints raised correspond precisely to the grounds for challenge established by Article 829 of the Code of Civil Procedure.
In proceedings to set aside an arbitral award, the court may not raise the nullity of the award of its own motion nor declare the award null and void on a ground other than those relied upon in support of the challenge, given that the power to raise the nullity of an act of its own motion must be coordinated with the principle of party disposition and with the principle of correspondence between the relief sought and the relief granted, with the consequence that the court's decision must be confined to the grounds of unlawfulness raised by the interested party.
Following the reform introduced by Legislative Decree No. 40/2006, the challenge of an arbitral award for breach of rules of law relating to the merits of the dispute is permitted only where expressly so provided by the parties or by statute, whereas a challenge on grounds of breach of public policy remains available in all cases, with the consequence that, in the absence of an express extension of judicial review to breaches of rules of substantive law, the challenge of the award is confined to errors in procedendo.
Disputes concerning challenges to shareholders' resolutions of companies having an unlawful or impossible object are not capable of being referred to arbitration pursuant to Article 806 of the Code of Civil Procedure; resolutions adopted in the complete absence of information, which are treated as equivalent under Article 2479-ter of the Civil Code, fall within the same category, since they concern non-waivable rights, transcending the interest of the individual shareholder and involving the legitimate expectations of all persons who enter into dealings with the company.
Disputes concerning challenges to a resolution approving the financial statements of a company on the ground of failure to meet the requirements of truthfulness, clarity and accuracy are not capable of being referred to arbitration, given that the rules designed to ensure those principles, being enacted for the protection not only of the interest of each shareholder but also of the legitimate expectations of third parties who enter into dealings with the company, are mandatory in nature and concern non-waivable rights, with the consequence that a breach of those rules triggers a response from the legal order irrespective of the conduct of the parties and renders the approving resolution unlawful and therefore void.
The determination of legal costs and fees made directly by the arbitrators in the award has the value of a mere contractual offer, which becomes binding only if accepted by all the parties to the dispute, with the consequence that a party who has not accepted such offer has no interest in challenging the part of the arbitral award concerning the determination of the legal costs and fees of the proceedings, as well as the arbitrators' fees, the secretary's remuneration and the operating costs of the tribunal.