Post-Award Extra Petita Resolution: to Protest Before the Arbitral Tribunal or the Judicial Branch?

Abstract

Those who litigate in arbitration expect the arbitral tribunal to resolve the merits of the dispute which, according to the law on the subject (Legislative Decree No. 1071), take place with the issuance of the award. However, the law itself provides for a series of post-award requests that must be resolved by the same arbitral tribunal that issued the first award. One of said requests is to exclude the award, which proceeds when an issue that has not been submitted to the court or is not subject to arbitration has been resolved. Nevertheless, what happens when the exclusion assumption is not included in the award but in the post-award resolution that settles any of the requests? The aforementioned is the subject matter of this paper. In fact, in the judicial casuistry on annulment of awards, lawsuits have been filed under this assumption, which—as mentioned before—does not have a specific regulation. For that reason, it is necessary to address this topic, taking into account the importance of arbitration and, overall, the right to effective judicial protection that litigants have.