Marcello Maggiolo

«Arbitraggio» and Settlement.

  • Abstract

Informations and abstract

Keywords: contract, subject matter determination by a third party, settlement, analogies, regulation consequences.

The difference between settlement (transazione) and arbitraggio (the fact of a third person who has been given the power to determine the subject matter of the contract) is clear. But there are reasons to analyze the possible interference between the two legal institutes: mostly, because there are cases where the arbitraggio clause aims to avoid a conflict between the contractual parties (for example concerning the price fixation in the sale of company shares; in preference clauses; in clauses concerning shares liquidation in case of shareholder's withdrawal from the company; in relation with an apportionment). Having explored some of the most important topics which are implied by the fact that in those cases a third person has received by the parties the power to determine the subject matter of a contractual relationship, the paper examines the main difference with the settlement, i.e. the fact that there is no dispute yet, and the main differences between possible challenges against a settlement, and possible challenges against the third person determination in the arbitraggio (art. 1349 c.c.). Having disclosed the opportunity of an application to the arbitraggio of some of the settlement rules (mostly, art. 1975 c.c.), the paper analyzes the reasons which allow an analogy.

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