In arbitral proceedings, the use by the court-appointed expert of documents which, although not formally placed in evidence by one of the parties, were duly transmitted to the parties’ experts and subjected to adversarial scrutiny during the expert operations, having been specifically examined and challenged, does not constitute a breach of the right to a fair hearing under Article 829(1)(9) of the Code of Civil Procedure.
The defect of failure to adjudicate provided for by Article 829(1)(12) of the Code of Civil Procedure, which grounds a challenge for nullity of the arbitral award, arises only where the arbitral tribunal has entirely failed to adopt any decision, whether express or implied, of acceptance or rejection, on a claim or defence raised in accordance with the arbitration agreement, and not where the arbitrators have decided in a manner contrary to the expectations of a party.
Article 829(1)(12) of the Code of Civil Procedure, which permits a challenge for nullity of the award in the event of failure to adjudicate on claims or defences, refers to the situation—distinct from that of a total absence of reasoning and corresponding to that provided for by Article 112 of the Code of Civil Procedure—in which the arbitrators have failed to provide a response to one or more issues submitted for their determination and falling within the scope of the submission to arbitration.
In proceedings for the challenge of an arbitral award under Articles 828–830 of the Code of Civil Procedure, the production of documentary evidence is admissible, as no evidential bars are prescribed either in arbitral proceedings or in the rules governing challenge proceedings.