In proceedings for setting aside an arbitral award, a party's acceptance of the jurisdiction of the arbitral tribunal in a composition different from that originally agreed, manifested through consent to the appointment of the chairman according to a new supervening statutory regime, constitutes tacit modification of the contractual agreements on the composition of the adjudicating body and precludes the same party from subsequently alleging, in setting-aside proceedings, the nullity of the award on grounds of irregular composition of the tribunal, such invalidity being capable of being cured by conclusive conduct during the arbitration proceedings.
The challenge to an arbitral award pursuant to Article 829(2) of the Code of Civil Procedure, in the text prior to the reform by Legislative Decree No. 40/2006, on grounds of failure by the arbitrators to observe the rules of law, requires explicit allegation of the erroneousness of the legal principle applied in relation to the factual elements submitted to the arbitral tribunal.
In proceedings for setting aside an arbitral award, the principle of internal expansive effect under Article 336(1) of the Code of Civil Procedure applies, with the result that the reversal, even partial, of the arbitral decision causes the head relating to costs to fall away, with the consequent power and duty of the judge hearing the challenge to make a new determination of procedural costs, including those for the operation of the arbitral tribunal and the arbitrators' fees, in light of the final outcome of the dispute.