Court of Appeal of Milan, judgment of 24 July 2026, No. 2299

The failure to produce the file of the arbitral proceedings does not render the challenge to the award inadmissible or incapable of proceeding, the obtaining of the file having a merely subsidiary function, but may at most lead to the rejection of the individual grounds of challenge for failure to discharge the burden of proof.
For the purposes of the admissibility of a challenge to an award for breach of the rules of law governing the merits of the dispute, the law to which art. 829, co. 3, cod. proc. civ. refers must be identified as that in force at the time the arbitration agreement was concluded, so that, where arbitral proceedings are commenced after the entry into force of the new regime but by virtue of an agreement concluded earlier, in the absence of any stipulation by the parties the previous text of art. 829, co. 2, cod. proc. civ. is applicable.
An advance waiver of the right to challenge an award for errores in iudicando does not require any set form of words, but must appear from the express and unequivocal intention of the parties, attributing significance to the finality of the decision; a clause providing that the arbitral award shall be binding upon the members does not amount to such a waiver.
An authorisation given by the parties to the arbitrators to use the criterion of equity in quantifying the sums claimed is not equivalent to an authorisation to decide ex aequo et bono rather than according to law, and therefore does not render inadmissible a challenge to the award for breach of the rules of law.
The power to render a decision ex aequo et bono is distinct from the power to assess damages on an equitable basis, since the former presupposes an application by the parties and entails deciding the dispute independently of strict law, whereas the latter permits recourse, including of the court's own motion, to equitable criteria in order to make good the impossibility of proving the precise amount of the loss; an arbitral tribunal which, having determined the quantum on the basis of the findings of the expert evidence, reduces the amount so established does not therefore decide ex aequo et bono.
Proceedings challenging an award are not an ordinary appeal and, at the rescinding stage, are confined to ascertaining the grounds of nullity laid down by art. 829 cod. proc. civ. and relied upon in the document instituting the challenge, and do not empower the court to re-examine the arbitrators' decision on the merits; only following rescinding proceedings concluding with a finding that the award is void is a re-examination of the merits of the arbitral decision possible, as the subject-matter of any iudicium rescissorium.
An allegation that the award is void for non-observance of rules of law in iudicando is admissible only if confined within the same boundaries as the breach of law which may be relied upon in an appeal to the Court of Cassation for breach or misapplication of rules of law; a ground by which, by means of a challenge for nullity, the assessment of the facts pleaded and of the evidence obtained in the course of the arbitral proceedings is contested is therefore inadmissible, that assessment having been contractually entrusted to the institutional competence of the arbitrators.
A ground of challenge to an award which introduces a new question, not raised in the arbitral proceedings, is inadmissible.
The interest in challenging an award is to be assessed by reference to the concrete benefit accruing to the party from the possible success of the challenge, and cannot consist in an abstract interest in a more correct resolution of a legal question having no practical bearing upon the decision adopted; an appellant therefore lacks such interest where he contests a head of the award merely declining the arbitrators' jurisdiction in accordance with his own case, or where he alleges a failure to rule upon claims brought by the other party.
There is no nullity of the award for want of reasoning where the tribunal has clearly set out the reasons for its decision, referring to the findings of the expert evidence and identifying the fact giving rise to the right recognised, the matters underlying the decision thus being sufficiently brought out.
The notion of public policy relevant under art. 829, co. 3, cod. proc. civ. expresses the ethical, economic, political and social principles which characterise the legal order in the various fields of social life and find their synthesis in the Constitution for the protection of general interests; a breach of rules, even mandatory ones, committed by the arbitral tribunal does not of itself render the final ruling contrary to public policy.
The taxation of costs and remuneration effected directly by the arbitrators has the value of a mere contractual offer, which becomes binding only if accepted by all the parties to the dispute, so that a party which has not accepted that offer has no interest in challenging the head of the award concerning the taxation of the arbitrators' fees, of the secretary's remuneration and of the tribunal's operating expenses.
An order for the costs of the arbitral proceedings made against the substantially unsuccessful party is correct, by reason of the success of some of the other party's claims and the dismissal of its own.