The paper offers a comparison between the state court’s judgment-forming process and the arbitrators’ decision-making process, also focusing on the profile of the impartiality of the members of the arbitration panel and in particular of the party arbitrator.
Keywords: Arbitration, Collegiality, Decision-making process.
La collegialitā nell'arbitrato Lo scritto offre un confronto tra le modalità di formazione delle decisioni assunte nel contesto arbitrale e le regole seguite, invece, dal giudice ordinario, soffermandosi altresì sul profilo dell’imparzialità dei componenti del collegio arbitrale e, in particolare, degli arbitri designati dalle parti.
Parole chiave: Arbitrato, Collegialità, Procedimento di formazione delle decisioni.
1. Collegiality is a legal technique based on the majority principle whereby bodies made up of several individuals make decisions in the interest of a particular group of people to which they belong or for third parties.
The law creates a legal fiction by:
– selecting certain persons entrusted with the power to make binding decisions;
– establishing a sphere of powers that are entrusted to the persons thus selected; and
– setting up a procedure under which the persons thus empowered must act to examine, discuss and decide the matters entrusted to them.
The legal fiction consists in considering that the decision passed by a majority by the group of persons thus selected to exercise the power is the group’s decision.
Collegiality is the legal technique of deciding together in such a way that the decision – irrespective of personal opinions – is the single, binding decision for the entire group of persons with the power to decide.
In this way, the decision becomes a legally binding act, which is unique and certain for the recipients of the decision.
In summary, collegiality is the legal technique necessary for multi-personal groups to form and have a single will, as if they were individuals. For an individual, will, decision and action are one. In groups of humans, there has to be a procedure and a mechanism whereby the individual will is added to the others and becomes one through the majority principle. Collegiality ensures the proper functioning of this process of collective will formation.
From this angle, therefore, collegiality is more than just a majority decision. It is not merely an arithmetical counting of individual wills. In order to reach the expression of the individual decision of each group member, which will mathematically add up to the individual decisions of the other group members in establishing which will prevails and which will succumbs, a procedure is established whereby the group members, before casting their vote, must jointly analyse the “thema decidendum”, confront each other, discuss and, only after having done so in full, vote.
The decision is collegial because, at least to a certain extent, the formation of the will of the decision-makers takes place together, in so far as they study the problem together, they do the legal research for its solution together, they discuss it together and, finally, they vote.
Only in this way does collegiality make it possible to consider the group’s will to be one and to disregard personal opinions, which become irrelevant to the law and of no effect.
The collegial act will be the act of the majority and only that will produce effects vis-à-vis the group’s members and third parties.
So, we have a legal fiction to make the will of multi-personal bodies “one”. Collegiality is, therefore, a very flexible instrument, which lends itself to being used in any cases where it is necessary to find a [continua..]
