L'ARBITRABILITA' DEI DIRITTI

The aim of my research is to offer a different and in some aspects unpublished analysis of the notion of arbitrability of the rights, in order to better understand the concept of availability provided for in article 806 Italian Code of Civil Procedure, since, as observed by the doctrine, <<there is an excess of approximation in the identification of the unavailability of rights as a criterion to choose the matters which should or should not be subject to arbitration; furthermore, there is nowadays a well-marked discrepancy between the dogmatic premises, that govern the rules set forth in the Code and the real operating range of the arbitration (…)>>.The present paper seeks to reach the mentioned achievement through the analysis of the relationship between the concepts of rights arbitrability and public order. Precisely, this latter is often considered as cause of exclusion of the disputes arbitrability. Though - as highlighted by the greater part of the doctrine - the concept of rights unavailability should not be confused with the mandatory nature of rules, it is irrefutable that the rights unavailability (and the consequent non-arbitrability) is based on the necessity of protecting interests not exclusively relevant to the owner of the same, but also protected by public order rules. However, as analyzed in France through the distinction between public order of direction and public order of protection, not any public order rules/principles are aimed at protecting public interests. Such a different way of intending public order principles, in the field of arbitration - which mainly emphasizes the ascertainment of rights more than the availability of rights, shows that the combination availability-arbitrability is not real. This paper is essentially composed of four chapters: the first one is dedicated to the historical reconstruction of the subject-matter of the arbitration agreement; the second deals with the analysis of the concept of unavailability expressed by article 806 Italian Code of Civil Procedure; the third, having comparative nature, focuses on the notion of public order in the Italian and French Corpus Iuris; and, finally, the fourth chapter describes some practical results of the distinction between public order of direction and public order of protection in the field of arbitration.