Ricerc@Sapienza

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.