Court of Appeal of Milano, judgment of 28 July 2026, No. 2340

An application to set aside an award for nullity is a limited form of challenge, being available only to raise errores in iudicando and errores in procedendo within the exhaustive limits of art. 829 cod. proc. civ., and does not give rise to proceedings enabling the court hearing the challenge to review the arbitrators' decision on the merits, allowing only the iudicium rescindens.
A review of the merits of the arbitral decision, which is the object of the possible subsequent iudicium rescissorium, is available only where the rescinding proceedings have ended with a finding that the award is null and provided that, being anchored to the matters found by the arbitrators, the erroneousness of the rule of law applied is expressly alleged.
A challenge for infringement of the rules of law governing the merits of the dispute is admissible only where expressly provided for by the parties or by law, consistently with the need for stability of the arbitral decision founded on the contractual autonomy expressed in the arbitration clause.
At the rescinding stage the review carried out by the court hearing the challenge cannot extend to the interpretation of the contract which is the subject of the arbitral dispute, nor to the reconstruction of the facts made by the arbitral tribunal, those being matters reserved to the determination of the merits.
The reference to the public policy clause contained in art. 829, co. 3, cod. proc. civ. must be construed restrictively, as a reference limited to the fundamental and mandatory rules of the legal order, to the exclusion of any attenuated notion of public policy coinciding with the body of mandatory rules; the alleged infringement of substantive or procedural rules, even mandatory ones, which cannot be traced back to such fundamental principles does not constitute a ground of nullity of the award.
A complaint which, although formally framed as a conflict with a mandatory rule, in substance amounts to criticism of the arbitral tribunal's characterisation of the transaction and interpretation of the contractual clauses, or to a request for a fresh factual assessment of the parties' conduct, cannot be relied on as an infringement of public policy.