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Recueil des cours, Collected Courses, Tome 452
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Massimo V. Benedettelli, Power(s) in International Arbitration, Balancing Party Autonomy and State Sovereignty Through Arbitral Authority
International arbitration can be viewed as a power game among different actors, where the interest of business in self-regulation intersects and potentially clashes with the interest of States in protecting unwaivable principles of adjudication and policies pursued in the governance of national markets.
In a world of fragmented normativity, however, the ensuing need to balance party autonomy and State sovereignty may find different answers depending on the regimes applicable from time to time in light of the links a dispute has with different legal systems. In fact, since powers are granted by law which determines their function, scope, and effects, in cross-border situations their regulation necessarily stems from a variety of non-homogeneous sources of international law, State law, and possibly instruments of a-national rules of law.
If arbitration actors wish to make an educated use of their powers, these sources and the relevant legal systems must be identified. This may be necessary in view of their coordination, which raises different problems depending on whether the power to prescribe, the power to adjudicate or the power to enforce are at hand. Arbitral tribunals may deal with them on a more rational basis if guided by certain general principles embedded in their mandate (taking private autonomy seriously, safeguarding the effet utile of their activity, considering the parties’ legitimate expectations) and if they use private international law techniques.
Identifying the legal systems of reference in a given case may also lead to detect forum and law shopping opportunities, which parties can self-servingly exploit in view of regulatory arbitrages, and States can contrast when leading to the elusion of mandatory regimes. At the epicentre of this tension, arbitral tribunals could find inspiration for managing it by looking at how the European Union allocates normative and adjudicatory powers in three areas of legal intercourse where private and public interests easily overlap and conflict (companies, financial markets, and insolvencies). Leveraging their authority to virtuously combine forum and law shopping with the safeguard of State sovereign prerogatives, arbitral tribunals would enhance the legitimacy of international arbitration.
International arbitration can be viewed as a power game among different actors, where the interest of business in self-regulation intersects and potentially clashes with the interest of States in protecting unwaivable principles of adjudication and policies pursued in the governance of national markets.
In a world of fragmented normativity, however, the ensuing need to balance party autonomy and State sovereignty may find different answers depending on the regimes applicable from time to time in light of the links a dispute has with different legal systems. In fact, since powers are granted by law which determines their function, scope, and effects, in cross-border situations their regulation necessarily stems from a variety of non-homogeneous sources of international law, State law, and possibly instruments of a-national rules of law.
If arbitration actors wish to make an educated use of their powers, these sources and the relevant legal systems must be identified. This may be necessary in view of their coordination, which raises different problems depending on whether the power to prescribe, the power to adjudicate or the power to enforce are at hand. Arbitral tribunals may deal with them on a more rational basis if guided by certain general principles embedded in their mandate (taking private autonomy seriously, safeguarding the effet utile of their activity, considering the parties’ legitimate expectations) and if they use private international law techniques.
Identifying the legal systems of reference in a given case may also lead to detect forum and law shopping opportunities, which parties can self-servingly exploit in view of regulatory arbitrages, and States can contrast when leading to the elusion of mandatory regimes. At the epicentre of this tension, arbitral tribunals could find inspiration for managing it by looking at how the European Union allocates normative and adjudicatory powers in three areas of legal intercourse where private and public interests easily overlap and conflict (companies, financial markets, and insolvencies). Leveraging their authority to virtuously combine forum and law shopping with the safeguard of State sovereign prerogatives, arbitral tribunals would enhance the legitimacy of international arbitration.
Massimo V. Benedettelli was born in Bari, Italy, on 30 May 1957.
He pursued his studies at the Università degli Studi di Bari, where he earned a Laurea in political sciences in 1979 and a Laurea in law in 1984. He then continued his academic training abroad, obtaining an LLM from the University of Pennsylvania School of Law in Philadelphia (1982-1983) and completing a PhD at the European University Institute in Florence (1981-1987).>br/> His academic career has been primarily associated with the Università degli Studi di Bari, where he served as Full Professor of International Law in the Department of Law from 2009 to 2023, having obtained tenure as Associate Professor in 1994. Since 2024, he has been the scientific coordinator of the postgraduate programme on Global Litigation and Arbitration Management at the Department of Law of the Università Statale degli Studi in Milan, and since 2022, he has directed the programme on International Arbitration and Risk Management at SDA (Scuola di Direzione Aziendale) Bocconi in Milan. Over the years, he has taught courses in Public International Law, Private International Law, International Economic Law, EU Law, and European Commercial Law.
He has been a member of the Board of Trustees of the Europäisches Rechts Akademie in Trier, Germany, and an Associate Faculty Member of EDLE, the European Doctorate in Law and Economics jointly organised by the Universities of Bologna, Hamburg, and Rotterdam. He also serves on the editorial boards of Rivista dell’arbitrato, Diritto del Commercio Internazionale, and Rivista di diritto societario (interno, internazionale, comunitario e comparator). In 2026, he will act as General Reporter on “The Application of the Lex Fori: Developments in Practice and Foundations in Theory” at the Twenty-Second General Congress of the International Academy of Comparative Law in Berlin.
His institutional appointments include membership in the Court of Arbitration of the International Chamber of Commerce (ICC), Paris (2018-2024), the ICC Commission on Arbitration and ADR (since 2012), the European and International Affairs Commission of the National Council of Italian Notaries Public (2006-2013), and the board of the Associazione italiana per l’arbitrato.
He has also served in several advisory capacities, including as a member of a study group of the Italian Ministry of Foreign Affairs on the revision of the Italian model bilateral investment treaty; as an expert for the European Commission on the relationship between EU law and Member State law in commercial arbitration prior to the reform of Regulation No. 44/2001; as a contributor to the Assonime (Associazione fra le società italiane per azioni) working group on the impact of EU law on Italian company and financial markets law; and as a consultant to the National Council of Italian Notaries Public, where he drafted a bill to implement the EU X Company Law Directive on cross-border mergers and participated in a study group with the Bank of Italy preparing the Italian report for the 2014 World Bank “Doing Business” project.
In the professional sphere, he is a founding partner of ArbLit in Milan (since 2014). Before that, he was a partner at Freshfields (2001-2014) and Chiomenti (1996-2001), and earlier in his career, he served in the legal department of ENI SpA (1986-1990)
He pursued his studies at the Università degli Studi di Bari, where he earned a Laurea in political sciences in 1979 and a Laurea in law in 1984. He then continued his academic training abroad, obtaining an LLM from the University of Pennsylvania School of Law in Philadelphia (1982-1983) and completing a PhD at the European University Institute in Florence (1981-1987).>br/> His academic career has been primarily associated with the Università degli Studi di Bari, where he served as Full Professor of International Law in the Department of Law from 2009 to 2023, having obtained tenure as Associate Professor in 1994. Since 2024, he has been the scientific coordinator of the postgraduate programme on Global Litigation and Arbitration Management at the Department of Law of the Università Statale degli Studi in Milan, and since 2022, he has directed the programme on International Arbitration and Risk Management at SDA (Scuola di Direzione Aziendale) Bocconi in Milan. Over the years, he has taught courses in Public International Law, Private International Law, International Economic Law, EU Law, and European Commercial Law.
He has been a member of the Board of Trustees of the Europäisches Rechts Akademie in Trier, Germany, and an Associate Faculty Member of EDLE, the European Doctorate in Law and Economics jointly organised by the Universities of Bologna, Hamburg, and Rotterdam. He also serves on the editorial boards of Rivista dell’arbitrato, Diritto del Commercio Internazionale, and Rivista di diritto societario (interno, internazionale, comunitario e comparator). In 2026, he will act as General Reporter on “The Application of the Lex Fori: Developments in Practice and Foundations in Theory” at the Twenty-Second General Congress of the International Academy of Comparative Law in Berlin.
His institutional appointments include membership in the Court of Arbitration of the International Chamber of Commerce (ICC), Paris (2018-2024), the ICC Commission on Arbitration and ADR (since 2012), the European and International Affairs Commission of the National Council of Italian Notaries Public (2006-2013), and the board of the Associazione italiana per l’arbitrato.
He has also served in several advisory capacities, including as a member of a study group of the Italian Ministry of Foreign Affairs on the revision of the Italian model bilateral investment treaty; as an expert for the European Commission on the relationship between EU law and Member State law in commercial arbitration prior to the reform of Regulation No. 44/2001; as a contributor to the Assonime (Associazione fra le società italiane per azioni) working group on the impact of EU law on Italian company and financial markets law; and as a consultant to the National Council of Italian Notaries Public, where he drafted a bill to implement the EU X Company Law Directive on cross-border mergers and participated in a study group with the Bank of Italy preparing the Italian report for the 2014 World Bank “Doing Business” project.
In the professional sphere, he is a founding partner of ArbLit in Milan (since 2014). Before that, he was a partner at Freshfields (2001-2014) and Chiomenti (1996-2001), and earlier in his career, he served in the legal department of ENI SpA (1986-1990)
Introduction. International arbitration as a power game in a world of fragmented normativity
Chapter I. Powers in the law of international arbitration
A. Overcoming the Babel in the international arbitration law discourse
B. “Powers” and “party autonomy” in the “law” of “arbitration” when arbitration is “international”: Five polysemies in need of clarificatio
1. The common wisdom
2. Law between rules, principles, and legal systems
3. Arbitration as adjudication of legal disputes
4. Party autonomy as the foundation of arbitration
5. International arbitration: Seven alternative, partly overlapping, notions
6. Power in legal discourse
C. Analysing powers in international arbitration
1. International arbitration as a power game between different actors
Chapter II. The power to prescribe
A. The power of States to regulate arbitration
1. The constitutional law dimension
2. The scope of arbitration law
3. Mandatory rules, default rules, principles
B. Limits set out by international law
1. Customary law
2. Treaty law
3. General principles of law
4. International comity
C. The role of party autonomy
1. The parties’ choice of the applicable law
2. The parties’ choice of the legal system(s) of reference
3. Limits to party autonomy
D. The role of arbitral autonomy
1. Lawmaking by adjudicators
2. Lawmaking by arbitral tribunals
3. Limits to arbitral autonomy
Chapter III. The power to adjudicate
A. Dealing with the conflictual dimension of international arbitration
1. Making use of the private international law technique
2. Determining the applicable law in commercial arbitration
3. Determining the applicable law in investment arbitration
B. The allocation of the power to adjudicate
1. Jurisdictional issues
2. Procedural issues
3. Merit issues
C. Interferences and possible coordination between arbitral and court proceedings
1. Stay of the proceedings
2. Forum non conveniens
3. Anti-suit injunctions
D. The preclusive and conclusive effect of awards and judgments
Chapter IV. The power to enforce
A. Enforcement as an expression of imperium
B. The power to enforce between party autonomy and applicable laws
1. Party autonomy
2. Applicable laws and recognition of foreign decisions
C. The enforcement powers of courts
D. The enforcement powers of arbitral tribunals
E. The enforcement powers of arbitral institutions
Chapter V. Balancing party autonomy and state sovereignty through arbitral authority: towards a “virtuous” forum shopping?
A. International arbitration as a playground for forum shopping
B. Shopping in the market of arbitration laws
1. Understanding forum shopping
2. The “market of arbitration”
3. Governing forum shopping in the market of arbitration
C. Models for regulating forum shopping in the arbitration of corporate, financial markets and insolvency disputes: The EU experience
1. Corporate disputes
2. Financial markets disputes
3. Insolvency disputes
4. The common rationale and methodology
D. The exercise of arbitral authority in view of a virtuous forum shopping
Chapter I. Powers in the law of international arbitration
A. Overcoming the Babel in the international arbitration law discourse
B. “Powers” and “party autonomy” in the “law” of “arbitration” when arbitration is “international”: Five polysemies in need of clarificatio
1. The common wisdom
2. Law between rules, principles, and legal systems
3. Arbitration as adjudication of legal disputes
4. Party autonomy as the foundation of arbitration
5. International arbitration: Seven alternative, partly overlapping, notions
6. Power in legal discourse
C. Analysing powers in international arbitration
1. International arbitration as a power game between different actors
Chapter II. The power to prescribe
A. The power of States to regulate arbitration
1. The constitutional law dimension
2. The scope of arbitration law
3. Mandatory rules, default rules, principles
B. Limits set out by international law
1. Customary law
2. Treaty law
3. General principles of law
4. International comity
C. The role of party autonomy
1. The parties’ choice of the applicable law
2. The parties’ choice of the legal system(s) of reference
3. Limits to party autonomy
D. The role of arbitral autonomy
1. Lawmaking by adjudicators
2. Lawmaking by arbitral tribunals
3. Limits to arbitral autonomy
Chapter III. The power to adjudicate
A. Dealing with the conflictual dimension of international arbitration
1. Making use of the private international law technique
2. Determining the applicable law in commercial arbitration
3. Determining the applicable law in investment arbitration
B. The allocation of the power to adjudicate
1. Jurisdictional issues
2. Procedural issues
3. Merit issues
C. Interferences and possible coordination between arbitral and court proceedings
1. Stay of the proceedings
2. Forum non conveniens
3. Anti-suit injunctions
D. The preclusive and conclusive effect of awards and judgments
Chapter IV. The power to enforce
A. Enforcement as an expression of imperium
B. The power to enforce between party autonomy and applicable laws
1. Party autonomy
2. Applicable laws and recognition of foreign decisions
C. The enforcement powers of courts
D. The enforcement powers of arbitral tribunals
E. The enforcement powers of arbitral institutions
Chapter V. Balancing party autonomy and state sovereignty through arbitral authority: towards a “virtuous” forum shopping?
A. International arbitration as a playground for forum shopping
B. Shopping in the market of arbitration laws
1. Understanding forum shopping
2. The “market of arbitration”
3. Governing forum shopping in the market of arbitration
C. Models for regulating forum shopping in the arbitration of corporate, financial markets and insolvency disputes: The EU experience
1. Corporate disputes
2. Financial markets disputes
3. Insolvency disputes
4. The common rationale and methodology
D. The exercise of arbitral authority in view of a virtuous forum shopping