L'arbitrato tra autonomia ed eteronomia

Arbitration is governed by two different kind of forces: party autonomy, which is left to the discretion and appreciation of private individuals; and mandatory rules of law, applicable to the merits of the dispute, as well as to the procedural aspects of the trial. These two different sources make of arbitration a complex instrument, which is at the same time an expression of party autonomy and a legal model for non-State adjudicatory proceedings. Accordingly, it is essential to circumscribe those areas which are reserved to the law and to public order principles, related to both the merits and the procedural aspects of the dispute, vis-à-vis those fields where party autonomy is allowed to intervene. In determining the scope of these two areas, differences between the various phases of the proceedings need to be taken in consideration, starting from the beginning of the trial, through its entire duration, until the epilogue consisting in the delivery of the arbitral award. Finally, it is submitted that, despite arbitration is progressively assuming the shapes of a jurisdictional procedure resembling more and more Court litigation, the role of party autonomy in setting the applicable substantive and procedural rules has to be safeguarded.