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

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.