The nullity of the arbitral award on the ground of inconsistency of its provisions, pursuant to art. 829 co. 1 n. 11 cod. proc. civ., does not arise where the reasoning of the arbitral award gives a full account of the reasons for which the claim for damages was upheld notwithstanding the dismissal of the claim for termination of the contract, the claim for damages being autonomous from the claim for termination, so that an order for damages may be made even where the claim for termination is dismissed, on whatever ground.
The application of a penalty clause for delay in performance does not presuppose the termination of the contract to which it relates, nor is it precluded by the characterisation of the contractual time-limit as non-essential, having regard to the difference in their respective functions: the penalty clause, consisting in a prior and lump-sum liquidation of damages, constitutes a means of reinforcing the contractual obligation which operates at the level of the effects of non-performance or delay, whereas the time-limit for performance pertains to the preceding phase of the performance of the contractual relationship.
In the matter of the challenge of the arbitral award, a ground of appeal in cassation which censures an argument of the judgment of the Court of Appeal made ad abundantiam, not capable of supporting the decision, is inadmissible, since, such argument being incapable of producing legal effects already produced by the principal ratio decidendi, there is no interest in its cassation in order to prevent the formation of res judicata.