L'arbitrabilità delle controversie nella riforma del diritto societario, tra arbitrato interno e arbitrato internazionale

The Author comments on some aspects of the new Italian rules concerning arbitration in respect of disputes related to companies, introduced by Legislative Decree n. 5 of 17 January 2003, which are relevant in the perspective of its application to international arbitration. In particular, it appears questionable whether these are intended to apply to all companies subject to Italian law, as part of the lex societatis, irrespective of the place of arbitration, or whether, to the contrary, they are to be deemed applicable to arbitration having its seat in Italy, irrespective of the nationality of the company concerned. The procedural effect of derogation from the jurisdiction of Italian courts tilts the balance in favour of the latter assumption. The Author therefore briefly examines the widely debated issue of the law applicable to the matter of substantive arbitrability, and, in particular, the alleged relevance of internationally mandatory rules (lois d'application immédiate), as evidence of the presence of public interests of a given State, which would render the matter unsuitable for arbitration.