An appeal for nullity of an arbitral award constitutes a review with limited grounds, admissible exclusively in the presence of specific grounds corresponding to defects referable to the errores in procedendo listed in Article 829, paragraph 1, of the Code of Civil Procedure, or to the violation of rules of law within the narrow limits permitted by the same article, without this authorising the appellate court to re-examine the merits of the arbitrators’ decision.
Following the reform introduced by Article 24 of Legislative Decree 40/2006, an appeal against an award for violation of rules of law relating to the merits of the dispute is admissible only if expressly provided for by the parties in the arbitration agreement or by law, whilst in any case an appeal for contrariety to public policy remains permissible pursuant to Article 829, paragraph 3, of the Code of Civil Procedure.
The notion of public policy relevant for the purposes of an appeal against an award pursuant to Article 829, paragraph 3, of the Code of Civil Procedure must be understood as international public policy, that is to say as a reference to the fundamental and mandatory norms of the legal system which are reflected in the Constitution and in supranational provisions protecting the general interest, excluding the attenuated notion of domestic public policy coinciding with the imperative norms of the legal system.
The waiver of a claim in arbitral proceedings must be established unequivocally by a certain and unambiguous manifestation of intent by the party concerned, the mere omission of the claim when clarifying submissions not being sufficient; instead, it is necessary to ascertain, from an overall assessment of the procedural conduct, whether an unequivocal intention not to pursue the omitted claim emerges.
There is no ultra petita when the arbitral tribunal rules on a claim which, although not expressly re-submitted in an interlocutory act of the proceedings, has been the subject of adversarial argument between the parties, has been referred to in the final submissions, and has been contested on the merits by the opposing party without any objection of waiver.