Riassunto analitico
The increasingly growing rate of commercial disputes deriving from international trade has led to the need for an adequate dispute resolution method. In this context, arbitration may represent an alternative but still effective way to resolve disputes on international commercial matters. One of the main features of arbitration is the principle of party autonomy, by which the parties explicitly exclude the jurisdiction of state courts and can determine several aspects of the proceedings and the applicable law of the arbitration agreement. The rationale for party becomes especially relevant in an international context as arbitration results not only in a private, but also neutral dispute settlement, regardless of the different national jurisdictions of the parties. However, party autonomy is subject to some limitations imposed by national courts’ jurisdictions to supervise the correct execution of arbitration proceeding. In particular, the major limitation to party autonomy is the principle of public policy. The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is today considered the most successful instrument in the area of international commercial arbitration, which has brought contracting states towards a more liberal approach to international arbitration by facilitating the recognition and enforcement of foreign arbitral and by creating a more uniform arbitration legal regime at international level. Public policy may constitute an important ground to resist enforcement of arbitral awards, in accordance with article V(2)(b) of the New York Convention. Since arbitration is still a private process characterized by party autonomy, the rationale of public policy is to guarantee a fair and impartial arbitral proceeding. The issue of corruption in an arbitral procedure may be raised by the competent authority itself when it constitutes a ground for invalidity of the arbitration and thus questions the jurisdiction of the arbitral tribunal. Because of that, self-initiated investigation into corruption can be relevant to ascertain the arbitrability of the dispute and the jurisdiction of the arbitral tribunal. The ICC Case No. 1110 is probably the most well known case in which the jurisdiction of the arbitral tribunal to decide upon a contract involving corruption has been challenged.
|
