The new provision of article 829 of the Code of Civil Procedure, introduced by Legislative Decree No. 40 of 2006, applies to all arbitral proceedings commenced after the entry into force of the reform, but to establish the admissibility of challenge for violation of the rules of law on the merits of the dispute, the law to which article 829, paragraph 3, of the Code of Civil Procedure refers must be identified as that in force at the time of the conclusion of the arbitration agreement.
The proceedings for challenging an arbitral award comprise two phases: the first rescindent phase, aimed at ascertaining any nullities of the award and concluding with the annulment thereof; the second rescissory phase, which follows the annulment, during which the ordinary court proceeds to reconstruct the facts on the basis of the evidence adduced.
In the rescindent phase of proceedings for challenging an award, the Court of Appeal is not permitted to proceed with findings of fact, being required to limit itself to verifying the existence of any nullities committed by the arbitrators, which may only be pronounced for specific procedural errors as well as for non-observance of the rules of law within the limits provided by article 829 of the Code of Civil Procedure.
The setting aside of the award in the part relating to the acceptance of the principal claim also entails the setting aside of the ruling declaring other issues absorbed contained in the same arbitral decision, in application of the principle established by article 336, paragraph 2, of the Code of Civil Procedure, which is also applicable to challenges for nullity of arbitral awards.
In proceedings for challenging an arbitral award, the party successful on the merits in the arbitral proceedings, in the event of an appeal brought by the unsuccessful party, is not under a duty to file a cross-appeal in relation to its own claims or defences which were not accepted because they were superseded or not examined as being absorbed, but must only expressly re-propose them in the challenge proceedings to avoid the presumption of waiver arising from omissive conduct.