Arbitraggio e iniquità della determinazione: criteri di valutazione e rimedi

The institute “arbitraggio” is regulated in article 1349 of the Italian Civil Code and provides that the parties to a contract may give to a third party the power to determine, after the conclusion of the contract, one of the obligations contained in the contents of the contract. The first part of my PhD thesis is concerned with the analysis of the characteristics of the “arbitraggio” both in Italian law and in German law with the aim of highlighting similarities and differences. Italian law provides two different types of “Arbitraggio”: arbitrium ex bona fide and arbitrium merum. These two types may be distinguished by the different rules governing the arbitrator’s determination. In the case of arbitrium ex bona fide, if it is evident that the third party determination does not comply with equitable principles it may be replaced, if requested by a contracting party, with a new one corresponding to the judge’s decision. On the contrary, in the case of arbitrium merum a contracting party can only appeal against the third party determination if it can be proved that the arbitrator has made his decision in bad faith. German law also regulates the “arbitraggio”. Its dogmatic classification has a jurisprudential genesis and corresponds to a three-stage classification: ‘additional arbitraggio’, ‘redrafting arbitraggio’ and ‘establishing arbitraggio’. Like Italian law, German law also stipulates that unfair third party determination shall be without effect and replaced by the judge’s decision (§ 319 BGB). The second part of the thesis distinguishes for a research concerning the unfairness of third party determination. This task was based on the analysis of some dogmatic similarities between Italian and German law and developed and focused on two aspects. On the one hand it attempted to find new rules for establishing the level of unfairness of the third party determination. On the other hand it dealt with the possibility of additional remedies, besides those already provided by article 1349 c.c. in favor of the contracting party that had been put at a disadvantage by the unfair third party determination. Both these aspects were developed starting from a common premise: the unfair third party determination may be treated as one of the extraordinary circumstances that, conducing to an imbalance between the contractual obligations, are considered under Italian law as a precondition for a request to withdraw from the contract (article 1467 c.c. regarding the “risoluzione del contratto per eccessiva onerosità”). On the grounds of this parallelism between "arbitraggio" and "risoluzione del contratto per eccessiva onerosità" it is possible to argue that the same criteria normally used to identify the abnormality of the circumstances that could affect the contract, may also be used to identify the unfairness of the third party determination. Furthermore this comparison has also proved helpful in reflecting on the possibility of using, in the case of unfair determination, the remedy of “risoluzione del contratto per eccessiva onerosità” in addition to the remedy provided in art. 1349 c.c.: that means, not requesting an alternative judge’s determination but withdrawing from the contract with retroactive effect.