The history of arbitration is that of the duel between the central power of the State and the dispersed power of individuals. On the one hand, the State claiming a monopoly over justice and on the other, private individuals deciding to resolve their disputes as they wish. Indeed, Arbitration is a private judicial process characterized by a flexibility of forms, the determination of which is left to the autonomy of individuals. The only limitation placed by the State is the observance of the conditions required to attach juridical relevance to the arbitration agreements and to the arbitral awards. When defining the conditions required for the recognition of the arbitration agreements and arbitral awards, the legislator can extend or restrict the space of autonomy granted to individuals (parties or arbitrators) for the purpose of regulating the proceedings. This can for example be due to the ends pursued by the parties and/or concern certain categories of disputes, such as those disputes concerning employment matters and labour law, whereby the State grants a lesser degree of autonomy to the negotiating parties. As such, besides “ordinary arbitrations”, it seems legitimate to separately address those “special arbitrations” derogating to the common arbitration discipline and always introduced to grant a greater or lesser autonomy to the negotiating parties. Importantly, both ordinary and special arbitrations can be traced back to the same common procedural scheme, notably based on the Party Autonomy, and characterized by a contradictory and by the impartiality of the judge and its being a “third-party.” In this respect, the “arbitrato irrituale” – literally “non-ritualistic arbitration”, as opposed to the ordinary (ritualistic) model, can also be considered as “special”. This notwithstanding, in the Italian academic tradition, the category of “special arbitrations” is almost exclusively reserved to employment arbitrations, arbitrations relating to public contracts, banking and financial arbitrations, sports arbitrations and forensic arbitrations, all of which are specifically addressed in this study. In all of the aforementioned arbitrations, the derogations to the common discipline never relate to the quality of the cognition and of the contradictory, but only – as illustrated in this introductory essay – to the conditions required for the conduct of the arbitration itself, the appointment of arbitrators, their powers, the procedure, the costs, the enforcement of the award and its appeal.

Ruffini, G. (2020). Trattato di diritto dell'arbitrato. Vol. 10: L' arbitrato nei rapporti di lavoro. L'arbitrato nei contratti pubblici. Altri arbitrati speciali. In A.d.S. Marco Angeloni (a cura di), Trattato di diritto dell'arbitrato. Vol. 10: L' arbitrato nei rapporti di lavoro. L'arbitrato nei contratti pubblici. Altri arbitrati speciali (pp. 1-23). Napoli : Edizioni Scientifiche Italiane spa.

Trattato di diritto dell'arbitrato. Vol. 10: L' arbitrato nei rapporti di lavoro. L'arbitrato nei contratti pubblici. Altri arbitrati speciali

Giuseppe Ruffini
2020

Abstract

The history of arbitration is that of the duel between the central power of the State and the dispersed power of individuals. On the one hand, the State claiming a monopoly over justice and on the other, private individuals deciding to resolve their disputes as they wish. Indeed, Arbitration is a private judicial process characterized by a flexibility of forms, the determination of which is left to the autonomy of individuals. The only limitation placed by the State is the observance of the conditions required to attach juridical relevance to the arbitration agreements and to the arbitral awards. When defining the conditions required for the recognition of the arbitration agreements and arbitral awards, the legislator can extend or restrict the space of autonomy granted to individuals (parties or arbitrators) for the purpose of regulating the proceedings. This can for example be due to the ends pursued by the parties and/or concern certain categories of disputes, such as those disputes concerning employment matters and labour law, whereby the State grants a lesser degree of autonomy to the negotiating parties. As such, besides “ordinary arbitrations”, it seems legitimate to separately address those “special arbitrations” derogating to the common arbitration discipline and always introduced to grant a greater or lesser autonomy to the negotiating parties. Importantly, both ordinary and special arbitrations can be traced back to the same common procedural scheme, notably based on the Party Autonomy, and characterized by a contradictory and by the impartiality of the judge and its being a “third-party.” In this respect, the “arbitrato irrituale” – literally “non-ritualistic arbitration”, as opposed to the ordinary (ritualistic) model, can also be considered as “special”. This notwithstanding, in the Italian academic tradition, the category of “special arbitrations” is almost exclusively reserved to employment arbitrations, arbitrations relating to public contracts, banking and financial arbitrations, sports arbitrations and forensic arbitrations, all of which are specifically addressed in this study. In all of the aforementioned arbitrations, the derogations to the common discipline never relate to the quality of the cognition and of the contradictory, but only – as illustrated in this introductory essay – to the conditions required for the conduct of the arbitration itself, the appointment of arbitrators, their powers, the procedure, the costs, the enforcement of the award and its appeal.
9788849542950
Ruffini, G. (2020). Trattato di diritto dell'arbitrato. Vol. 10: L' arbitrato nei rapporti di lavoro. L'arbitrato nei contratti pubblici. Altri arbitrati speciali. In A.d.S. Marco Angeloni (a cura di), Trattato di diritto dell'arbitrato. Vol. 10: L' arbitrato nei rapporti di lavoro. L'arbitrato nei contratti pubblici. Altri arbitrati speciali (pp. 1-23). Napoli : Edizioni Scientifiche Italiane spa.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11590/378004
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