In the matter of arbitration, the declaration of bankruptcy of one of the parties to the arbitral proceedings entails that an action for the ascertainment of a debt owed by the bankrupt party and for an order that the trustee in bankruptcy pay the same may be neither commenced nor continued in arbitral proceedings, but must be pursued exclusively within the framework of the verification of claims, pursuant to art. 52 l.fall., by reason of the public-law nature of the principle of pari passu distribution among creditors, which displaces the conferral of cognisance upon the arbitrators.
In the matter of the challenge of the arbitral award, the ground of nullity set out in art. 829, co. 1, n. 4, second limb, cod. proc. civ. — pursuant to which the award is null if ‘the merits could not be decided’ — is made out by the lack of potestas iudicandi of the arbitral tribunal which, notwithstanding the supervening bankruptcy of a party, ordered the trustee in bankruptcy to satisfy a credit claim which ought to have been determined exclusively in the insolvency proceedings.
In the matter of the challenge of the arbitral award for nullity pursuant to art. 829, co. 1, n. 4, second limb, cod. proc. civ., the question of the potestas iudicandi of the arbitral tribunal — where the bankruptcy of one of the parties requires recourse to the insolvency procedure for the verification of claims pursuant to art. 52 l.fall. — is preliminary to the substantive determination of the entitlement to the disputed credit and cannot be made conditional upon the latter.