Contractual arbitration (arbitrato irrituale) is characterised by the fact that the parties intend to entrust the resolution of disputes to the arbitrators through a contractual mechanism, by means of an amicable settlement or a declaratory agreement (negozio di accertamento) referable to the will of the parties, who undertake to treat the arbitrators’ decision as an expression of their own will.
The contractual nature of contractual arbitration (arbitrato irrituale) precludes the challenge of the award on the ground of errors in judicando, with the result that any complaint relating to errors in the assessment of facts and evidence, the suitability of the decision to resolve the dispute, and the legal aspects of the decision is barred.
A contractual arbitration award (lodo irrituale), having a contractual nature, is not subject to the ordinary procedural challenges, but only to those directed at remedying defects capable of vitiating any expression of will, such as mistake, duress, fraud or incapacity of the parties who conferred the mandate or of the arbitrators.
A breach of the adversarial principle in contractual arbitration (arbitrato irrituale) is relevant where it has resulted in an error vitiating the contractual will expressed by the arbitrators, it being required only that the parties be put in a position to state their claims and the arguments in support thereof.
Contractual arbitration (arbitrato irrituale) does not necessarily proceed in strict forms and progressive stages, not even with regard to the parties’ right to submit documents and pleadings or to file replies to the opposing party’s submissions, but requires only that the opportunity to know the respective positions and to defend oneself be ensured, so that each party has the opportunity to assert its own claims and to contest those of the other party.
In arbitration, where the parties have not laid down in the submission agreement or in the arbitration clause the procedural rules to be followed, the arbitrators are free to regulate the conduct of the proceedings in the manner they consider most appropriate, even departing from the provisions of the Code of Civil Procedure, subject only to compliance with the mandatory adversarial principle laid down in Article 101 of the Code of Civil Procedure.
The challenge of a contractual arbitration award (lodo irrituale) for breach of the adversarial principle requires that it be specifically demonstrated that such breach had an impact on the assessment of the facts required of the arbitrators, in the sense that it gave rise to an actual error in that assessment, resulting from the impossibility for one or more parties to have asserted their case.
A breach of the adversarial principle in contractual arbitration (arbitrato irrituale) may give rise to the invalidity of the arbitral award insofar as it constitutes a breach of the arbitral mandate, being relevant solely for the purposes of challenging the award under Article 1429 of the Civil Code, as an error which, arising from the breach of the limits of the mandate conferred on the arbitrators, vitiated the contractual will expressed by them.
An error in contractual arbitration proceedings (arbitrato irrituale) that may be raised on challenge must, in order to be relevant, satisfy the requirements of essentiality and recognisability under Articles 1429 and 1431 of the Civil Code, whereas an error committed by the arbitrators in relation to the determination reached on the basis of the conviction formed after interpreting and examining the evidence obtained is not relevant.
A contractual arbitration award (lodo irrituale) is not voidable on the ground of erroneous application of the rules of contractual interpretation, or on the ground of an assessment of the contractual evidence different from that adopted by the arbitrators and in any event not in conformity with the expectations of the challenging party.