Despre conflictul de competenþã între instanta judecãtoreascã si instanþa de arbitraj
About the conflict of jurisdiction between courts and arbitral tribunals

Summary/Abstract: The incidental provisions of the Code of Civil Procedure into force led to an non-uniform practice both of the courts and of the arbitral tribunals, and also to doctrinal controversies in relation to the method of settlement of the plea of lack of jurisdiction invoked by the defendant before the state court, based upon the applicability of an arbitral convention, or raised by the arbitral tribunal even ex officio. This study motivates, in harmony with a part of the domain doctrine, that the disclaimer of jurisdiction is not possible from one court to the other, given the prevailingly contractual legal nature of the arbitration, as well as the impossibility to qualify the arbitral tribunal as a body in charge with jurisdictional duties, due to the specificity of its incorporation and to its temporary duration, and the path to be followed shall be the action for annulment initiated against the arbitral award, no matter if the arbitral tribunal declared itself competent or incompetent to solve a dispute submitted to it; it is also emphasized that, taking into consideration that the arbitration procedure is special, with regulatory norms of strict interpretation and enforceability, the state court cannot disclaim its jurisdiction in favor of an arbitral tribunal, not being incorporated at the time the court adjudicates its jurisdiction, a court which, otherwise, may be notified only by the plaintiff, indicating also that the possible case of conflict of jurisdiction shall be declared only by the state court competent to proceed to the trial of the action for annulment. It is mentioned as well, that due to the fact that the New Code of Civil Procedure sets forth expressly that the arbitral tribunal declaring itself to be incompetent, shall disclaim the jurisdiction for settlement in favor of the competent court, art. 127 should set forth as well, that the court finding its lack of jurisdiction, may be able to disclaim the jurisdiction for solving a dispute in favor of the body in charge with jurisdictional duties or, as the case may be, of the competent arbitral tribunal, and this situation occurs as the new regulation does not mention at all the content of the notion of “body in charge with jurisdictional duties”, a phrase leading to the non-uniform practice so far.

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