Convenția arbitrală
Arbitration convention

Summary/Abstract: Arbitration is an alternative private jurisdiction to the State jurisdiction, in order to settle civil litigations. The private character of this jurisdiction is marked by the decisive role of the autonomy of will of the parties in the organization and conduct of arbitration, in the establishment of the arbitral tribunal, in which the arbitrators nominated by the parties are not designated by a public authority or by a public institution. The arbitrary source of the arbitration merges with the judicial nature conferred by the judgment pronounced, which enjoys the authority of res judicata and is executed in exactly the same way as any judgment pronounced by a state court. As a result, arbitration has a dual, contractual nature, through its source, and jurisdictional, through the judgment pronounced. In the present study several objectives have been pursued on the subject discussed, namely establishing the legal nature of the arbitral jurisdiction, the types of arbitration convention and its role, the elements of convergence between the arbitration clause and compromise, the formal requirements of the arbitration convention, its limits and the consequences and the exceptions from these limits in terms of trial, the conditions of validity of the arbitration convention, its effects and its effectiveness, the causes of cessation of the arbitration convention. The research undertaken in the present study aimed at stating the mentioned objectives and the theoretical and practical implications regarding the arbitration convention. The arbitration convention which lays conditions on the investment of the arbitral tribunal excludes the settlement of the litigation from the competence of the State jurisdiction. The arbitration convention concluded in the form of arbitration clause, included in the main contract or in a separate convention, but referring to the contract to which it refers, takes into account possible litigations, while the compromise deals with current litigation that have arisen and that is precisely why it comes after the conclusion of the contract and is much more detailed than the arbitration clause. The arbitration clause precedes the compromise and it can be completed by a compromise. Between the two forms of the arbitration convention there are elements of convergence, but also of distinction, however, in relation to the contractual obligation to which the arbitration convention refers, both are autonomous from the principal obligation. The existence of the arbitration convention, which prioritizes the arbitral jurisdiction, does not exclude, in order to remove the obstacles that would arise in organizing and conducting the arbitration procedure, according to the provisions of Article 547 of the Civil Procedure Code, the intervention of the State court in certain situations, such as those provided by Articles 561, 563, 585, 594 of the Civil Procedure Code, etc. The arbitration convention must be clear and unequivocal in nature, without the existence of the alternative character of the arbitration clause affecting its validity, if it means that there is the possibility for either party to choose between the arbitral jurisdiction and the State jurisdiction. The existence and validity of the arbitration agreement invoked by the defendant in the event that the applicant brings a complaint before the court will lead to the declining of competence in favour of the arbitration or to the rejection of the application, as not being of the competence of the State jurisdiction, in case the arbitration agreement concerns ad-hoc arbitration. Even if the arbitration convention exists, the court seized will retain the litigation for settlement, unless the defendant invokes it, by making its defence arguments on the merits, if the arbitration convention is null and void or if the tribunal can not be set up for causes obviously attributable to the defendant in arbitration. Article 550 (3) of the Civil Procedure Code institutes the principle of wide interpretation of the arbitration clause for all misunderstandings deriving from the contract or from the legal relationship to which it refers. This presumption of arbitrality, by extension, removes the difficulties of interpretation of the obscure or doubtful clauses, often finding its effectiveness of applicability in case of successive contracts, which is an extension of the contract in which the arbitration clause was inserted. The written form of the arbitration convention is a condition for validity thereof. Article 548 (1) of the Civil Procedure Code establishes a simplified and flexible system for fulfilling the formal requirement of the arbitration convention, such as exchange of mail, exchange of procedural documents, provided that the content of the arbitration convention reflects the object of the litigation and the unambiguous will of the parties to resort to arbitration. This requirement shall also be considered to be fulfilled also in case such a written convention is brought before the arbitral tribunal. Article 581 of the Civil Procedure Code establishes the limits of the arbitration convention, conditioning the participation of the third parties to the arbitration procedure pursuant to Articles 61–77 of the Civil Procedure Code on the agreement of the latter and all parties. The accessory intervention is an exception from the fulfilment of these conditions. In the hypothesis provided by Article 581 of the Civil Procedure Code, the arbitration convention receives a multipartite character. In the absence of the consent of third parties and of the litigant parties, the competence to solve the application, regarding the participation of third parties, lies with the common law court, because the third party or the third parties have no procedural legitimacy before the arbitral tribunal. The exceptions from these procedural limits intervene in the matter of assignment of claims, of the counter-claim, of the active solidarity and passive solidarity, provided by Article 1446 of the Civil Code. The conditions of validity of the arbitration convention are related to the arbitrality of the litigation, ratione personae and ratione materie, to the transactionable character of the litigation, but also to the essential conditions of the arbitration convention as contract. Regarding the capacity of exercise of the natural persons, since the arbitration convention is an act of disposition, it requires, in order to be concluded, the full capacity of exercise, which is not the same as the capacity to be party to legal proceedings. The State and the public authorities may enter into arbitration conventions only if they are authorized by law or by the international conventions to which Romania is a party. The autonomous regies, the national companies and societies may enter into arbitration conventions to the extent that they can be qualified as legal persons governed by public law and only if their business object includes also an economic activity, unless the law or their act of organization provides otherwise. The specificity of the terms of validity of the arbitration convention has legal consequences related to the effectiveness of the arbitration convention in terms of assigning the competence of jurisdiction to the arbitral tribunal. The arbitration convention has a contractual character, and the different moments of concluding the two forms of the convention, the arbitration clause and the compromise, mark the character of each of these contracts. The arbitration clause is a predominantly judicial contract assigning jurisdiction, while the compromise is also a judicial contract assigning to competence, but complex by its content. What must be emphasized is that both forms of the judicial contract refer to the formal rules of the jurisdiction and not to the merits of the litigation, such as the transaction contract, which is also a judicial contract, but which refers to the merits of the litigation.

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