An action to set aside an award is a limited challenge confined to specified grounds, being available only to raise errores in iudicando and errores in procedendo within the limits exhaustively laid down by art. 829 cod. proc. civ.; it does not give rise to an appeal permitting a re-examination of the merits of the arbitral decision, but allows only the iudicium rescindens.
Only upon the conclusion of the rescinding stage with a finding that the award is void is it possible, pursuant to art. 830 cod. proc. civ., to proceed to a re-examination of the merits of the arbitral decision, which forms the subject matter of the possible subsequent iudicium rescissorium.
A complaint that the award is void for non-compliance with the rules of law in iudicando is admissible only if confined within the same limits as the breach of law which may be raised on an appeal on points of law, with the consequent inadmissibility of a ground contesting the assessment of the facts pleaded and of the evidence taken in the arbitral proceedings, which is contractually entrusted to the institutional competence of the arbitrators.
A challenge for lack of reasons in the award is admissible only where the deficiency is such as to amount to the substantial absence of reasons, that is to say where it is absolutely impossible to reconstruct the logical and legal reasoning underlying the decision because of the total absence of reasons answering to their functional model.
In raising grounds for setting aside an award the parties are under a duty to comply strictly with the rule requiring the grounds to be specific, understood even more strictly than in an ordinary appeal, the rescinding stage being comparable to an appeal on points of law, so as to make it possible to verify that the complaints correspond to the grounds of challenge exhaustively laid down.
The question of a breach of the principle of audi alteram partem in the arbitration must be examined not from a formal standpoint but as part of an inquiry directed to establishing an actual impairment of the opportunity to make submissions and to respond, so that the award and the proceedings are to be declared void only where the complaint of the defect is accompanied by an indication of the specific prejudice caused to the right to a defence.
No nullity for breach of the principle of audi alteram partem arises where, the factual framework remaining unaltered, the arbitral tribunal has merely characterised the claim in law and identified the provision applicable to the case.
Nullity of the award for contradictory provisions, pursuant to art. 829, co. 1, no. 11, cod. proc. civ., does not arise in every case of contradictory or insufficient reasons, but only where there is a contradiction between the various provisions of the operative part, or between the reasons and the operative part, such as to render the ratio decidendi impossible to understand, amounting to a substantial complete absence of reasons; contradiction internal to the reasons is relevant only in so far as it makes it absolutely impossible to reconstruct the logical and legal reasoning of the decision.
An arbitrator seised of disputes arising out of the application or construction of the articles of association does not exceed the limits of the arbitration agreement by holding a provision of the articles void as a logical and legal premise of the decision on the claims brought.