CONVENZIONE D'ARBITRATO E CONFLITTO TRA ARBITRI E GIUDICE ORDINARIO
Creators: name: STEFANETTI, CAROLINA
Publisher: name: Universit� degli Studi di Milano
Year: 2018

description: The dissertation is divided into three chapters. Chapter One addresses the nature of the arbitration phenomenon, which has been a controversial issue ever since the Italian Code of Civil Procedure entered into force in 1940, until the last Italian Arbitration Law reform, in 2006. During this time frame, two main conflicting interpretations of the arbitration phenomenon have been upheld by scholars and case law: one emphasising the jurisdictional nature of arbitration, the other stressing its private character. The issue of the controversial qualification of the arbitration phenomenon was also addressed by the Joint Division of the Italian Supreme Court on 3rd August 2000, with the decision No. 527, upholding the private character of arbitration and, in particular of the arbitral award. An overview of the scholars? opinions and case law developed between 2000 and 2006 concludes the first Chapter. Chapter Two deals with the 2006 Italian Arbitration Law ? ultimately adopting the jurisdictional view ? with a specific focus on articles 817 and 819 of the Italian Code of Civil Procedure, which regulate the relationship and the conflict of jurisdiction between arbitration and State court proceedings, and on article 824 bis, which regulates the effects of the arbitral award. Chapter Two, then, deals with the problem of parallel proceedings, determined, in the Italian legal system, by the lack of a preventive coordination mechanism, in case both arbitration and court proceedings are initiated. Chapter Two ends with an analysis of the scholars? opinions, developed under the 2006 Arbitration Law, whereby a translatio iudicii should operate between arbitration and State court proceedings. Chapter Three is divided into three parts. The first part deals with two important decisions of 2013: one has been handed down by the constitutional Court (decision of 19th July 2013, No. 223) and the other one by the Joint Divisions of the Italian Supreme Court (decision of 25th October 2013, No. 24153). The following part is the core of the dissertation, where the most relevant topic is analysed, i.e. the matter of parallel proceedings and its practical issues. The topic is examined by criticising the qualification of the conflict of jurisdiction between an arbitral tribunal and a State court as being identical to the conflict of jurisdiction between different State courts. Then, the matter of parallel proceedings and the one of the decision on the validity of the arbitration agreement is dealt with. In particular, the practical issues which are identified and analysed are the ones related to the scenario in which the same claim is brought before both an arbitral tribunal and a State court as well as the one in which a claim is brought before an arbitral tribunal, while autonomous proceedings on the validity of the arbitration agreement are pending before a State court. These scenarios are first analysed in light of the various interpretations developed by the main scholars and then suggesting a personal one. The third part of Chapter Three deals with the possibility of a translatio iudicii mechanism between arbitration and State court proceedings, which has been introduced by the above mentioned decision of the Constitutional Court of 2013, while the Code of Civil Procedure does not contain any specific provision on that.