The author analyzes the main principles of arbitration and evidence, trying to answer the question if arbitrators are or not bound by formal rules of evidence, written for the ordinary procedure, if the parties does not provide they are bound by civil procedure rules, as they can do in force of art. 816 bis c.p.c.. Then, the second question is, in case arbitrators are bound by law or by a parties’ choice, if these rules are or not compatible with arbitration. For doing that, the author analyzes preliminarily if civil procedure rules represents a default regulation for arbitration, concluding they are not. Then he shows how, also if civil procedure rules are not a default regulation, parties and arbitrators are bound by public order rules. So the author analyzes the relationship between evidence law and public order rules (chap. 2), in particular describing this link regarding the right of defence and the judge’s duty of impartiality. Connected to this last principle is the rule providing that the judge cannot use his personal knowledge to decide the case. The conclusion for the appurtenance to the public order of the process regards also the burden of proof, in the limits described and the relevancy of the proof. The last chapter regards the direct analysis of the described principles and the other main Italian rules of evidence in arbitration, with the conclusion that, also considering the comparison with the American legal system, except for the described primarily principles, Italian arbitrators, like American ones, are not bound by formal rules of evidence. The author also take note of the doctrine and of the case law regarding the said subject, and the last part of the dissertation regards the analysis of the compatibility with the arbitration process of formal ordinary rules, in case their application is asked by the parties or choose by the arbitrators. The description of the compatibility problems show how the freedom of proof, as to the previous analysis, can overcome those problems.

I principi e la disciplina delle prove nell'arbitrato / Mengali, Andrea. - (2009 Jul 01).

I principi e la disciplina delle prove nell'arbitrato

Mengali, Andrea
2009-07-01

Abstract

The author analyzes the main principles of arbitration and evidence, trying to answer the question if arbitrators are or not bound by formal rules of evidence, written for the ordinary procedure, if the parties does not provide they are bound by civil procedure rules, as they can do in force of art. 816 bis c.p.c.. Then, the second question is, in case arbitrators are bound by law or by a parties’ choice, if these rules are or not compatible with arbitration. For doing that, the author analyzes preliminarily if civil procedure rules represents a default regulation for arbitration, concluding they are not. Then he shows how, also if civil procedure rules are not a default regulation, parties and arbitrators are bound by public order rules. So the author analyzes the relationship between evidence law and public order rules (chap. 2), in particular describing this link regarding the right of defence and the judge’s duty of impartiality. Connected to this last principle is the rule providing that the judge cannot use his personal knowledge to decide the case. The conclusion for the appurtenance to the public order of the process regards also the burden of proof, in the limits described and the relevancy of the proof. The last chapter regards the direct analysis of the described principles and the other main Italian rules of evidence in arbitration, with the conclusion that, also considering the comparison with the American legal system, except for the described primarily principles, Italian arbitrators, like American ones, are not bound by formal rules of evidence. The author also take note of the doctrine and of the case law regarding the said subject, and the last part of the dissertation regards the analysis of the compatibility with the arbitration process of formal ordinary rules, in case their application is asked by the parties or choose by the arbitrators. The description of the compatibility problems show how the freedom of proof, as to the previous analysis, can overcome those problems.
Arbitrato. Prova civile.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11385/200714
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