Proceedings for the annulment of an arbitral award constitute proceedings subject to limited grounds of challenge, which may only be brought for specific procedural errors (errores in procedendo) expressly provided for in Article 829, paragraph 1, of the Code of Civil Procedure, as well as for non-observance of rules of law within the limits indicated by Article 829, paragraph 3, of the Code of Civil Procedure, with application of the rule requiring specific formulation of grounds in consideration of the rescissory nature of such proceedings.
In an appeal to the Court of Cassation against a judgment which has decided upon the challenge to an arbitral award, the review of legality must be conducted exclusively by verifying the conformity to law and the adequacy of the reasoning of the judgment which decided upon the challenge to the award, as the Court of Cassation cannot directly examine the arbitrators’ decision.
Proceedings for the annulment of an arbitral award comprise two distinct phases: the first, rescissory, aimed at ascertaining any nullities of the award; the second, reconstructive, which follows annulment and during which the judge proceeds to reconstruct the facts, it not being permitted for the court of appeal in the first phase to proceed with fact-finding.
The court of appeal seised with a challenge to an arbitral award cannot exercise the power to raise ex officio contractual nullities which are not available as grounds for challenging the award itself, since the subject matter of the claim concerns the award and not the contract, only within the limits of the grounds advanced and if actually available under Article 829 of the Code of Civil Procedure.
Challenge to an arbitral award for violation of the prohibition on forfeiture clauses under Article 2744 of the Civil Code is not admissible on grounds of contrariety to public policy, since such provision, whilst being of a mandatory nature, does not express fundamental values of the legal system but is enacted for the protection of the contracting party’s patrimony.
Challenge for violation of rules of law relating to the merits of the dispute, governed by Article 829, paragraph 3, of the Code of Civil Procedure, is admitted only if expressly provided for by the parties in the arbitration agreement or by law, with the regime introduced by Legislative Decree n. 40/2006 applying to all arbitral proceedings commenced after the entry into force of the reform.
In challenging an arbitral award for nullity pursuant to Articles 828 et seq. of the Code of Civil Procedure, the court of appeal cannot raise ex officio grounds not pleaded in the act of challenge, save for the nullity of the submission agreement (compromesso) and the arbitration clause (clausola compromissoria), this being a remedy strictly limited and bound by the specific nature of the defects which may be pleaded.
The defect of failure to rule (omessa pronuncia) in an arbitral award may only be established with exclusive reference to claims, defences or contentions which require a ruling of acceptance or rejection in relation to the decision on the merits, but not in relation to procedural applications, for which the omission may only be complained of under the aspect of defective reasoning.