The aim of this Article is to assess what is the effectiveness of an arbitration agreement in the face of a plaintiff’s will to activate the procedure not before the Arbitral Tribunal, but using legal proceedings before the ordinary courts, in the particular case of the other party failing to enter an appearance and file its response in litigation. The hypothesis of this paper, therefore, refer to situations where the contumacy of the party before the Court (i.e., defaulting defendant in litigation) - in certain cases - is not protected by law, and whether this legislative gap should be filled. The problem relates to the defaulting of defendant in litigation, despite an existing arbitration agreement whose validity is not questioned by the plaintiff. This solution varies depending on the system and does not apply where the legislative gap has been eliminated by national regulation. In order to solve that question will be analysed Article II.3 NY Convention, Art. 8(1) UNCITRAL Model on International Commercial Arbitration and the Italian and Brazilian Legal Systems
Breach of the arbitration agreement, defaulting defendant in litigation and New York Convention's Model Fluctuations: The Italian and Brazilian Examples
Ferrante, Alfredo
2023-01-01
Abstract
The aim of this Article is to assess what is the effectiveness of an arbitration agreement in the face of a plaintiff’s will to activate the procedure not before the Arbitral Tribunal, but using legal proceedings before the ordinary courts, in the particular case of the other party failing to enter an appearance and file its response in litigation. The hypothesis of this paper, therefore, refer to situations where the contumacy of the party before the Court (i.e., defaulting defendant in litigation) - in certain cases - is not protected by law, and whether this legislative gap should be filled. The problem relates to the defaulting of defendant in litigation, despite an existing arbitration agreement whose validity is not questioned by the plaintiff. This solution varies depending on the system and does not apply where the legislative gap has been eliminated by national regulation. In order to solve that question will be analysed Article II.3 NY Convention, Art. 8(1) UNCITRAL Model on International Commercial Arbitration and the Italian and Brazilian Legal SystemsI documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
