For the purpose of determining the admissibility of a challenge to an arbitral award on the ground of violation of rules of law concerning the merits, the law to which art. 829, co. 3, cod. proc. civ. refers is that in force at the time of conclusion of the arbitration agreement; where the agreement was concluded before the entry into force of Legislative Decree no. 40/2006, the arbitration clause is governed by the previous rules, which admit a challenge to the award for violation of rules of law unless the parties have waived that right.
A clause in an arbitration agreement conferring on the arbitral decision the character of a ‘definitive’ decision must be interpreted as a preventive waiver by the parties of the right to challenge the award for errors in iudicando, such expression constituting a declaration of non-challengeability of the award within the meaning of art. 829, co. 2, cod. proc. civ. in its version prior to Legislative Decree no. 40/2006.
In proceedings to set aside an arbitral award, which are subject to a fixed set of grounds, the rule requiring specificity in the formulation of grounds applies; grounds of challenge that amount to the mere assertion of a different construction of the legislative and contractual framework, without specific reference to the grounds of nullity provided by art. 829, co. 1, cod. proc. civ., are inadmissible as they constitute an impermissible request to re-examine the merits.
The nullity of an award for deciding a matter incapable of being referred to arbitration under art. 829, co. 1, n. 4, cod. proc. civ. does not arise where the arbitrators, far from reviewing the legality of administrative measures, have established the existence of a subjective right arising directly from an agreement and from the statutory provision governing it, holding the failure to challenge the underlying administrative acts before the administrative courts to be irrelevant.