The impartiality of arbitrators is one of the most important principles of the arbitration system. Due to this, the Italian legislature protects it with preventive and subsequent measures. In addition to specific ethics rules and institutional arbitration rules, the main instrument is the challenge of arbitrators that may be filed in front of the state court on the grounds of lack of independence of the arbitrator. If the grounds for challenge are small their use is discouraged, although the arbitrator’s liability is increased. Usually, the lack of impartiality or independence is not included in the grounds for the review of the award. The aim of the following paper is to demonstrate that the Italian legislature wants to preserve the arbitration instrument, getting it closer to the function and structure of jurisdictional proceedings.
contractual theory
jurisdictional theory
general liability
arbitrator’s liability
tort liability
arbitrator´s misconduct
challenge of arbitrators
disclosure
review of arbitral award
impartiality
independence
public policy
institutional rules
European Human Rights Convention.
Elena Zucconi Galli Fonseca is a full professor of Civil Procedural Law. She teaches Civil Procedural Law and International and Domestic Arbitration Law at the Alma Mater Studiorum-University of Bologna, School of Law. She has written more than seventy books, articles and essays. Her research interests include arbitration, with particular reference to the arbitral convention, arbitration and company law, arbitral award; res iudicata, objective and subjective limits, connections between rights and collateral estoppel. Among her books are La convenzione arbitrale rituale nei confronti dei terzi (Arbitral convention and third person) Milan, 2006 and Pregiudizialità e rinvio. Contributo allo studio dei limiti soggettivi dell’accertamento (Contribute to doctrine of res judicata and third person), Bologna, 2011. She is a member of the Italian Association of Civil Procedure Law, and of the International Association of Procedural Law. She also practices civil and commercial law in Bologna. Her address is the: Università di Bologna, Scuola di giurisprudenza, via Zamboni n. 22, Bologna, Italy.
e-mail: elena.zucconigallifonseca@unibo.it.
Carlo Rasia is a researcher of Civil Procedural Law and a professor of European Procedural Law at the School of Law of the Alma Mater Studiorum-University of Bologna. His main research areas are focused on European Procedural Law and on National and International Arbitration. Among his works is the book Tutela giudiziale europea e arbitrato (European judicial protection and arbitration), Bologna, 2010. He participated in national and international research projects, as the European Commission project ‘European civil procedure and e-Justice implementation within the European Union’ (2010-2011). He is a member of the Italian Association of Civil Procedure Law. Since 2004 he has also practiced civil and commercial law in Bologna. His address is: Università di Bologna, Scuola di giurisprudenza, via Zamboni n. 22, Bologna, Italy.
e-mail: carlo.rasia@unibo.it.
