Arbitration settlement of disputes concerning administrative contracts in Romania

Author:C?t?lin-Silviu S?raru
Position:Department of Law, Bucharest University of Economic Studies, Romania, catalinsararu@yahoo.com.
Pages:223-227
SUMMARY

The present study aims to analyze the conditions under which arbitration may be used in the administrative contracts provided by the Civil Code and the legislation on public procurement and concessions. In the administrative law doctrine, the provision on the possibility to resort to arbitration in litigation regarding the administrative contracts is often expressed, because the competent... (see full summary)

 
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Arbitration settlement of disputes concerning administrative
contracts in Romania
Associate professor Ctlin-Silviu SRARU1
Abstract
The present study a ims to analyze the conditions under which a rbitration may be
used in the administrative contra cts provided by the Civil Code and the legislation on public
procurement and concessions. In the administrative law doctrine, the provision on the
possibility to resort to arbitra tion in litigation r egarding the administrative contracts is often
expressed, because the competent administrative court and, on the other hand, the ar bitration
is a specific institution of commercial law, where the par ties a re in a position of lega l
equality. In our opinion, in relation to the positive law pr ovisions pr eviously ana lyzed, we
consider tha t it is no longer possible to deny the possibility of inser ting, under the la w, the
arbitr ary arbitr ation clauses in litigations conce rning administrative contracts.
Keywords: arbitra tion, administra tive contracts, public pr ocurement, public concessions,
administrative la w.
JEL Classification: K23, K41
1. Introductory considerations
According to the provisions of article 542 (2) of the Code of Civil Procedure
"the state and public authorities have the capacity to conclude arbitration
conventions only if they are authorized by law or by international conventions to
which Romania is a party". Also, according to article 542 (3) of the Code of Civil
Procedure "legal persons governed by public law having their object of activity also
economic activities have the capacity to conclude arbitration agreements, unless the
law or their act of establishment or organization provides otherwise".
We note that the legislator creates a distinction, in our unjustified opinion2,
between the state and the public authorities, on the one hand, and the other legal
entities of public law, on the other. In practice, the lawmaker introduces a rule
prohibiting the state and public authorities from concluding arbitration conventions
and introduces the exception of the possibility of resorting to arbitration only in the
case of authorization by law or by international conventions to which Romania is a
party. On the other hand, in the case of other legal persons governed by public law
having their object of activity and economic activity, the rule of the possibility of
1 Ctlin-Silviu Sraru - Department of Law, Bucharest University of Economic Studies, Romania,
catalinsararu@yahoo.com.
2 See in the same sense Bazil Oglind, Despre validitatea i caracterul operant al clauzelor
compromisorii încheiate de stat, autoriti publi ce i alte persoane juridice de drept public, în
contextul noului Cod de procedur civil i al legislaiei speciale aplicabile, „Revista Transilvan
de tiine Administrative”, no. 1(34)/2014, p. 91.

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