The controversial relation between arbitration and State Courts involves fundamental questions such as those concerning the nature of arbitral awards and their effects. It was commonly accepted that, while State Court decisions solved controversies through the application of the law to a concrete case, arbitral awards settled the dispute by way of a decision derived the from parties’ autonomy. However, after the 2006 reform, theoretical debates as to the nature of arbitration have lost part of their significance because, irrespective of scholarly debates, the law provided specific solutions to the issues raised by practice. Nonetheless, doctrinal discussions could still have a practical influence in respect of some very relevant aspects such as the admissibility of «side effects» by arbitral awards on third parties. After the seminal decision by the Supreme Court in 2013, whereby arbitration has been declared as a jurisdictional equivalent to State Court litigation, discussions as to the nature of arbitration have re-flourished, also due to the abandonment of the idea of the State monopoly on jurisdiction. Nevertheless, arbitration still needs to be considered as an entirely private adjudicatory method and, despite arbitral awards can be compared quod effectum to State Court judgement, arbitral proceedings and Court litigation are two different methods for the settlement of disputes, which cannot be simplistically equated.
Arbitrato rituale e giurisdizione statale
de santis francesco
2019-01-01
Abstract
The controversial relation between arbitration and State Courts involves fundamental questions such as those concerning the nature of arbitral awards and their effects. It was commonly accepted that, while State Court decisions solved controversies through the application of the law to a concrete case, arbitral awards settled the dispute by way of a decision derived the from parties’ autonomy. However, after the 2006 reform, theoretical debates as to the nature of arbitration have lost part of their significance because, irrespective of scholarly debates, the law provided specific solutions to the issues raised by practice. Nonetheless, doctrinal discussions could still have a practical influence in respect of some very relevant aspects such as the admissibility of «side effects» by arbitral awards on third parties. After the seminal decision by the Supreme Court in 2013, whereby arbitration has been declared as a jurisdictional equivalent to State Court litigation, discussions as to the nature of arbitration have re-flourished, also due to the abandonment of the idea of the State monopoly on jurisdiction. Nevertheless, arbitration still needs to be considered as an entirely private adjudicatory method and, despite arbitral awards can be compared quod effectum to State Court judgement, arbitral proceedings and Court litigation are two different methods for the settlement of disputes, which cannot be simplistically equated.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
