Article 813-ter of the Code of Civil Procedure governs the action for liability against arbitrators following annulment of the award for facts imputable to them, but does not affect, either directly or automatically, the entitlement to remuneration, whose exclusion can derive only from judicial ascertainment of fraud or gross negligence in an autonomous proceeding.
The arbitrator's right to receive payment of fees arises from the fact of having effectively discharged the mandate conferred upon him within the framework of the mandate relationship subsisting between the parties and the arbitrators, and is independent of the validity and effectiveness of the award. The invalidity of the award does not cause the arbitrators' right to receive remuneration for the execution of the mandate to cease.
Contractual arbitration (arbitrato irrituale) finds its source in a contract of mandate by which two or more parties instruct one or more persons to resolve a dispute on behalf of and in the interest of the mandators.
In contractual arbitration, the time limit fixed by the parties for the pronouncement of the award is, by its nature and structure, essential, it being impossible to admit that the parties should be bound to the extra-judicial resolution of the dispute for an indefinite time. The mandate conferred upon the arbitrators is extinguished with the expiry of the time limit fixed by the parties pursuant to Article 1722, number 1, of the Civil Code.
The parties to contractual arbitration proceedings, whilst establishing a time limit for the discharge of the mandate, may exclude in concrete terms its essential character by attributing to it a merely indicative value. The ascertainment of whether the time limit is essential or merely directory is left to the appraisal of the judge on the merits.
The essential or directory nature of a time limit in arbitration must be deduced not only from the contractual clause, but also from the subsequent conduct of the parties. The essential character of a time limit for performance cannot be deduced solely from the use of specific temporal expressions, but implies an ascertainment from which there emerges unequivocally the parties' intention to consider the intended utility lost once the established time limit has elapsed.