A century of romanian arbitration: historical milestones, from tradition to modernity

Author:Cristina Ioana Florescu, PhD
Position:USH, Faculty of Juridical, Political and Administrative Sciences, Bucharest, Arbitrator (Bucharest, Brasov, Paris, Vienna, Chisinau), Lawyer, Bucharest Bar
Pages:236-255
SUMMARY

This paper presents the evolution of Romanian arbitration, proving its effort and orientation towards efficiency in order to meet the users’ needs and to adapt to the challenges of a changing world. In the seventeenth and eighteenth centuries, when the whole of Europe was struggling with the legislative activity imposed by the breaking of the old feudal tradition and the demand to meet the needs that were born with the revolutions and changes dictated by them, in our country, Caragea Code entered into force regulating also arbitration, taking over from the Donici Handbook and the Calimach Code. The latter, however, was considered superior to Caragea's legislation and applied for nearly 50 years. It followed the Unification of the Principalities and the adoption of the 1865 Civil Procedure Code with the arbitration regulated in the Fourth Book, which lasted until 1993, when arbitration was given a revival and ample regulation aligned with contemporary legislation. During the communist era there was an institution adapted to the new socialist principles for settling foreign trade disputes, the State Arbitration. This contributed keeping alive of the Commercial Code which was not abrogated, for it continued to use commercial law and its principles when Romanian law was to apply. The last significant change occurred with the entry into force of the current Civil Procedure Code in 2013, which harmonized the Romanian arbitration legislation with the most evolved trends. As culmination of the latest changes to meet the demand of placing Romania on the current international arbitration map as a suitable place to conduct a modern arbitration process tailored to trends, and to promote a sustainable arbitral system for the future, the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania recently adopted new Rules of arbitration developed from good practices and international rules in the field.

 
CONTENT
236 CRISTINA IOANA FLORESCU
A CENTURY OF ROMANIAN ARBITRATION:
HISTORICAL MILESTONES, FROM TRADITION
TO MODERNITY
Associate Professor, Cristina Ioana Florescu, PhD
USH, Faculty of Juridical, Political and Administrative Sciences, Bucharest
Arbitrator (Bucharest, Brasov, Paris, Vienna, Chisinau)
Lawyer, Bucharest Bar
Abstract
This paper presents the evolution of Romanian arbitration, proving its effort and orientation
towards efficiency in order to meet the users’ needs and to adapt to the challenges of a changing
world.
In the seventeenth and eighteenth centuries, when the whole of Europe was struggling with the
legislative activity imposed by the breaking of the old feudal tradition and the demand to meet the
needs that were born with the revolutions and changes dictated by them, in our country, Caragea
Code entered into force regulating also arbitration, taking over from the Donici Handbook and the
Calimach Code. The latter, however, was considered superior to Caragea's legislation and applied for
nearly 50 years.
It followed the Unification of the Principalities and the adoption of the 1865 Civil Procedure
Code with the arbitration regulated in the Fourth Book, which lasted until 1993, when arbitration
was given a revival and ample regulation aligned with contemporary legislation.
During the communist era there was an institution adapted to the new socialist principles for
settling foreign trade disputes, the State Arbitration. This contributed keeping alive of the
Commercial Code which was not abrogated, for it continued to use commercial law and its principles
when Romanian law was to apply.
The last significant change occurred with the entry into force of the current Civil Procedure
Code in 2013, which harmonized the Romanian arbitration legislation with the most evolved trends.
As culmination of the latest changes to meet the demand of placing Romania on the current
international arbitration map as a suitable place to conduct a modern arbitration process tailored to
trends, and to promote a sustainable arbitral system for the future, the Court of International
Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania recently
adopted new Rules of arbitration developed from good practices and international rules in the field.
Keywords: arbitration, history, regulation, evolution
Law Review vol. VIII, issue 2, July-December 2018, pp. 236-255
A Century of Romanian Arbitration: Historical Milestones… 237
1. Preamble
I admit that one of my favorite books is the novel “A Century of Loneliness”
by Gabriel Garcia Marquez and I was thinking of putting this title on my paper on
Romanian last Century arbitration, but the poetic license of loneliness and decline
does not fit into the general arbitration perspective. Above all, although the novel
is referring to a 100-year historical approach to a family destiny in which all the
characters are accompanied by the feeling of “loneliness” , the aspects I have
proposed to present hereby cannot play back this status. This is because the
arbitration is not related to a particular fictitious cycling or to regress, but rather to
evolution and development in accordance with the progress of society (on all
levels, economic, social, financial, cultural and not only) and to its users’
requirements. And in the present paper we are actually proposing to show that it is
not only a matter of a century in arbitration, but that it has been a millenary past,
and the Romanian one has more than 200 years of regulatory attestation.
2. Introductory notes on arbitration, framework and its significance in
general
Arbitration, domestic and international, deserves special attention, if not for
anything else, but for its practical, historical, contemporary importance, and its
future in settling business disputes, where for centuries arbitration has been a
preferred method. Lately, arbitration has been revitalized and regulated in line
with trends commanded by practice and the needs of its users. The preference for
arbitration has been revived and has become more pronounced, but in the last
decades, when international trade and investment have flourished, they became
more complex, more complicated and multiplied by globalization.
At a more fundamental level, arbitration deserves to be studied and known as
it illustrates the complexity and uncertainties of the society in which we live -
legally, commercially, culturally, socially and not only - and which it is dealing
with, and trying to address them in an effective, efficient and sophisticated
manner, tailored to the needs and demands of those they are using this dispute
resolution process. Beyond the immediate practical importance, arbitration
deserves attention because it involves a framework of legal, institutional, good
practice and ethical rules that it manages in a remarkable, successful and lasting
way to provide a fair, neutral, flexible, professional and efficient mechanism of
dispute resolution. Its framework allows the various players in an arbitration
process in a variety of jurisdictions, both private and state-owned, to cooperate to
resolve complex, sustainable, neutral and satisfactory disputes that allow business
relationships to continue. The analysis and mechanisms that have been developed
in the context of top-level arbitration offer models, perspectives and promises of
amicable resolution for other aspects of international affairs.
238 CRISTINA IOANA FLORESCU
Over time, the legal rules and institutions relevant to international commercial
arbitration have evolved in multiple and diverse countries and regions. In
principle, where society was free, both politically and economically, the
expressions of autonomy and private association, like arbitration, flourished, but
where totalitarian or tyrannical regimes have mastered, they have been repressed
or forbidden. In spite of periodical political episodes, the last half of the last
century witnessed the progress and unprecedented expansion of the legal
framework of international arbitration, almost always being made thanks to the
effort of public and private sector cooperation. The private sector has been the
driving and the dominant force for the successful development and widespread
use of arbitration, and governments and courts, particularly from developed
countries with tradition in commerce, market leaders, have contributed
considerably to ensuring recognition and the enforcement of private arbitration
conventions and arbitration awards, while affirming the party autonomy
principles and of the judicial non-immixture in the arbitration process.1 It should
be understood that arbitration as a private alternative does not substitute for state
jurisdiction in general, which actively participates in strengthening the structure
and principles of arbitration, but they are in a complementary relationship,
beneficial to both forms of justice.2 Thus, arbitration is a non-state procedure, a
form of private justice designed to give the parties the advantages that they do not
find in state justice.
In the last decades, the resulting legal framework of international arbitration
has achieved and realized a virtually progressive success and especially acceptance
in all regions of the world.3 This resounding success of international arbitration is
reflected in the growing number of international and domestic arbitrations, both
ad-hoc and institutional, the use of arbitration clauses in most international
contracts, the preference towards arbitration (and of other forms of dispute
resolution) of businesspeople and business leaders in the various fields (such as
disputes related to investment, corruption, human rights, construction and
complex development projects, competition, securities market, intellectual
property, media and information technology, oil and gas, energy, insolvency or
other matters), the broad adoption of international pro-arbitration conventions and
national arbitration laws favorable to new trends in the field, the redefinition and
refinement of institutional rules so as to meet the most current needs of users and
to correct the deficiencies observed in practice, the adoption of “soft law” (good
practices, guides) that respond to the principles of a fair and efficient process, not
1 G. B. Born, International Commercial Arbitration, vol. I, Wolters Kluwer 2009, p. 2.
2 V. Roş, Arbitrajul comercial internaional, Ed. Regia Autonom M. Of., Bucureşti 2000, p. 17.
3 M. Voicu, Unele consideraii privind arbitrajul comercial în activitatea jurisdicional intern şi
european (2014-2017), 28 august 2017 în JEssentials, https://juridice.ro/essentials/1610/unele-
consideratii-privind-arbitrajul-comercial-in-activitatea-jurisdictional-interna-si-europeana-2014-2017.
A Century of Romanian Arbitration: Historical Milestones… 239
to mention the advantages of arbitration that recommend it as a procedure
adapted to the most intimate and particular users’ so different requirements.
This year celebrates the 60th anniversary of the New York Convention, which
is marked and celebrated in numerous conferences around the world, publishing
of articles and books. The New York Convention is widely recognized as the
instrument for the establishment of international arbitration. It requires the courts
of the Contracting States to implement the arbitration conventions, to recognize
and enforce the arbitral awards made in the Contracting States (currently 159,
Romania adhering in 1961), subject to specific limitations.
Lately, the evolution of Romanian arbitration has experienced an
extraordinary revival, especially the traders (professionals) recognized its superior
advantages compared to the judgments made by the state courts. Nowadays,
arbitration becomes an increasingly widespread, popular method of settling
disputes agreed by the parties due to its more appropriate features to resolve
commercial disputes and, in particular, international trade disputes between
parties involved in international trade.
The own definition of arbitration is not a loophole of the Romanian law alone.
The Romanian arbitration did not have a legal definition until the entry into force
of the New Civil Procedure Code in 2013, which established in the opening of the
Fourth Book in Art. 541 that “Arbitration is an alternative private justice”, and
private character is reinforced by the second paragraph of the same article: “In the
administration of this jurisdiction, litigants and the competent arbitral tribunal
may establish procedural rules derogating from ordinary law, provided that such
rules are not contrary to public policy and to the mandatory provisions of the law.”
In general, the arbitration regulation is in the Code of Civil Procedure, special
legislation, International Conventions and Treaties, and Rules of arbitral
procedure, rules issued by permanent arbitral institutions.
We do not intend to present conciliation, mediation, arbitration or other
alternative forms of dispute resolution legal regulations of special laws in various
fields (such as liberal professions, labor law, copyright, medicine, financial
investment, insurance, consumer protection, etc.) that have created various bodies
or statutes of special mechanisms (binding in principle).
2.1 Permanent arbitration institutions in Romania
The Reform of the Court of International Commercial Arbitration attached to
the Chamber of Commerce and Industry of Romania, the most famous, reliable
and old permanent arbitration institution in Romania, celebrating this 65th
anniversary of its existence this year, has changed its rules since 1 January 2018.
The new rules strive to consistently promote Bucharest as a modern arbitration
240 CRISTINA IOANA FLORESCU
hub and have a strong modern, international, slim and flexible emphasis, being
developed in accordance with the best practices in the field.4
We do not intent to present the status and approach of other permanent
arbitration institutions in Romania, but we can distinguish that other Courts of
Arbitration have been set up alongside several Chambers of Commerce and
Industry, such as the Bucharest Municipality, the Bilateral Trade Chambers
Romanian-German (AHK), Romanian-American for example or with
representations in Romania such as AmCham, which established the Bucharest
International Arbitration Court (BIAC). We ascertain an extension of the
institutionalized arbitration in Romania, and so are the permanent or specialized
courts established by various associations, which intend to solve also the civil
litigations that can be resorted to arbitration (more common are divorce
settlements, the determination of the minors’ domicile, the intellectual property or
the civil cases part in criminal cases). The most well-known such an institution is
the Permanent Court of Institutionalized Arbitration with its headquarters in
Targoviste, which has developed and opened its centers in several other cities in
Romania, trying to attract users for which it resolves disputes through
partnerships with the business environment, with institutions and with various
professional associations.5
2.2 Advantages of arbitration
We cannot conclude these introductory notes without listing at least the most
significant arbitration advantages above mentioned, which therefore recommend
using this alternative to the state courts method.
Knowing the legal status and jurisdiction from the moment the contract is
concluded is likely to give the involved parties a more comfortable position and
greater certainty and confidence in the business consequences. In addition,
commercial relationships imply and necessarily require fairness and efficiency in
settling disputes as well as any issue arising in connection with contract
performance and business conduct in general. Thus, among the most significant
4 C. Florescu, Tendine de eficientizare în lumina noilor reguli române de procedur arbitral, în
Dreptul românesc la 100 de ani de la Marea Unire. Dimensiuni şi tendine, Ed. Universul Juridic 2018,
p. 121-126; C. Florescu, A Time For Change: Internationalizing Romanian Institutional Arbitration
Rules, în 100 Years Of United Romania Within The International Relations Context, Ed. Pro
Universitaria 2018; D. M. Şandru, Elemente eseniale ale noilor Reguli de procedur ale Curii de
Arbitraj Comercial Internaional de pe lâng CCIR, RRD nr. 6/2017, p. 41-48; Numirea arbitrului –
pilon fundamental al procedurii. Observaii privind noile Reguli de procedur arbitral ale Curii de
Arbitraj Comercial Internaional de pe lâng Camera de Comer şi Industrie a României, RRDA
nr. 2/2018.
5 There are discussions and comments about the efficiency and quality of the services provided
by this Tribunal, but we believe that is necessary to see the positive side because they are also trying
to contribute to the popularization, promotion and extension of arbitration.
A Century of Romanian Arbitration: Historical Milestones… 241
advantages offered by arbitration are (i) the speed of the procedure and the
avoidance of the lengthy and complicated legal remedies of ordinary judiciary
system, (ii) the decisions are final and binding for the parties, and their set aside
can only be made based on specific and procedural grounds which are foreseen
expressly by the law, (iii) the international recognition and enforcement of
arbitration awards, (iv) the confidentiality, (v) the flexibility and procedural
autonomy appropriate to each case, (vi) party autonomy principle (as a
cornerstone of arbitration, being essentially a voluntary alternative procedure),
(vii) costs and duration can be streamlined (more suited to complex, high-profile
disputes), (viii) neutrality (on the possibility of agreeing on the language and place
of arbitration, the organization and conduct of the hearings, the nationality of the
arbitrators, legal representation), (ix) but especially the possibility of the parties
choosing their judges (specialization and professionalism, reputation and
experience representing essential requirements).
3. Briefly historical view on arbitration before the last century
It can be noticed that during the history of law there has been transformation
and evolution of the concepts and institutions, legitimate and natural requirements
for the adaptation of the notions to the continuous globalization, diversification
and inclusion. In this sense, it has been observed that it is impossible for people to
live in society without their interests or passions giving rise to disputes. This is due
to the fact that the rules of objective law are not always abided, the subjective civil
rights satisfied or the obligations fulfilled. When such incidents occur it is normal
to reach a litigious state and to implicitly ask who will restore the socio-economic
order and the security of the civil or commercial circuit. Therefore, the
jurisdictional ways of resolving social conflicts are necessary,6 and the alternative
methods have their source in the need to look for more suitable solutions, adapted
to the particularities of the case.7
Thus, the state justice, implemented through the courts, falls primarily within
these ways. But there exists also a private justice, to which the parties can resort,
namely, arbitration,8 which has a millennial history and claims that it actually
existed well before any written law or state judicial organization. This recognizes
ancient landmarks on arbitration in the Bible (Solomon's judgment), the legends of
ancient Greece (the judgment of Paris, interpreting the scenes depicted on the
6 V. M. Ciobanu, Tratat teoretic şi practic de procedur civil, vol. I, Ed. Naional 1997, p. 8.
7 C. Florescu, Arbitrajul comercial. Convenia arbitral şi tribunalul arbitral, Ed. Universul Juridic
2011, p. 30, 31.
8 Ibidem, p. 10.
242 CRISTINA IOANA FLORESCU
shield made for Achilles by Hephaistos described by Homer9), in ancient Rome
(Cicero orator citing the compromises in arbitration, arguing that “arbitration is the
means of not winning a whole good process, or completely losing a bad
process”10), in Egypt at the time of the pharaohs, and even in Asia, China (reports
still dated from 2100 to 1600 BC).11
In fact, the evolution of arbitration may begin with some historical references
from ancient times, when the council of elders and wise men was appreciated as a
way of settling disputes that preceded the era of antiquity (Romans and Greeks,
those who devote aspects related to this institution and who were able to influence
our country), continuing with the Middle Ages and reaching into more modern
times. Arbitrators were actually those people who knew the habit of the place,
were experienced, had good reputation, morality and honor, especially inspiring
trust in the parties in dispute. We consider it the main feature underlying the rise
and triumph of arbitration, the possibility for the parties to choose the arbitrators
in which they have the highest trust from all points of view and whom they
consider worthy to offer a solution that is then willingly followed.
Arbitration, as a court procedure, in the most strictly legal sense, is actually
meet as ‘claim’ in the Romans. By iudicis postulatio12, one was suing if the law
required that the case be dealt within a certain manner, for example the Law of the
XII Table, for what was claimed by a stipulation. Thus, once the cause of the case
was indicated, an arbitrator was immediately called.
In the Romans, the impression that created is that the law binds; to the Greeks,
that it settles. Something curious happened with “law” in our conception: we took
the word from the Romans and gave it Greek meaning.13 Romanian law, lex, comes
from lego, lege, gather assembling the signs, reading. The “law” is the written one,
for unlike the mos - habit, morals, it had a precise formulation and was a decree
engraved in stone, with no possible and equal interpretation for all. Facing this
dissolution of the concept of law, concept that has started from the healthy sense of
the law as an expression of intimacy, there are the objective meanings of the word,
which language was forced to accept and join them: the legal and the scientific one.
The legal sense of the law, as a rule established by a human authority, could not
miss our community, like any organized community. Abiding to the law can only
be the release through law.14
9 It is a matter of judging a murder by several elders, each preparing a decision, but the final one
is to be determined not by collegial but by vote, i.e. the one considered the most appropriate. V. Roş,
op.cit., p. 21.
10 V. Roş, op.cit., p. 20.
11 http://www.ccia-arad.ro/curtea-de-arbitraj-comercial/.
12 C. Tomulescu, La responsabilite de Iudex romain a l’epoque classique, Iura 1973, p. 80-89.
13 C. Noica, Cuvânt împreun despre rostirea româneasc, Ed. Eminescu, 1987.
14 C. Florescu, Arbitrajul comercial. Convenia arbitral şi tribunalul arbitral, Ed. Universul
Juridic 2011, p. 31.
A Century of Romanian Arbitration: Historical Milestones… 243
The establishment of the arbitration institution took place from the times when
arbitrariness and not arbitration was agreed.15 The origins of the arbitration can be
found in antiquity, but especially in the Middle Ages, when commercial disputes
were settled by the parties through an authority designated by the parties, with an
untouched reputation, aware of the subject matter of the dispute, but moreover
beholder of the full confidence of those who were judging.
The exact etymology of the Latin word ‘arbiter’ is not well known.16 Originally,
the word meant the “witness”, but had the meaning of “master”, “teacher”. In
Greek, the synonym of the word ‘arbitrator’ suggests what arbitration is in fact.
The French word ‘arbitre’ was used in 1213. The arbiter had a legal acceptance,
while the arbitre was the person appointed by the parties to settle a dispute.
Obviously, during Roman law, state and arbitral judiciaries were in functional
complementarity relations and that arbitration was and has remained a source of
inspiration for legislators from ancient times.17 In France, in the Middle Ages,
arbitration is common, especially in fairs, becoming a serious competitor of state
justice. The first royal ordinance on arbitration dates back to France in 1510. In the
Middle Ages, the Western states often resorted the disputes to the Pope, the issued
decisions thus acquiring an almost divine authority – is renown the decision of
Pope Alexander VI (Rodrigo Borgia) in 1493, which has clarified the boundaries
between the Portuguese and Spanish colonies of the Pacific Ocean.18
4. Regulation of the Romanian arbitration until the 1989 Revolution19
In 1818, in Wallachia, the “Caragea Code” enters into force, regulating the
arbitration in 21 articles, in Chapter XVIII, entitled “For Erotocrisie”. In the
15 V. Roş, op.cit., p. 19.
16 C. Jarrousson, La notion d’arbitrage, Paris 1987, p. 5.
17 V Roş, Arbitrajul ad-hoc de comer exterior, Teza de doctorat, Facultatea de Drept, 1998, p. 14.
18 http://www.ccia-arad.ro/curtea-de-arbitraj-comercial/; L. Hertling, Istoria Bisericii, Iaşi 1998,
p. 294, https://emildumea.files.wordpress.com/2011/12/hertling-istoria-bisericii-traducere-emil-
dumea.pdf; V. Iliescu, I. Dinulescu, Bazele filosofice ale medicinii. O epistemologie de la şamanism la
genetic, Cluj-Napoca, Dacia 2003 p. 143, 144, https://dokumen.tips/documents/bazele-filosofice-
ale-medicinii-vasile-iliescu-napoca-dacia-2003.html.
19 See the interview of Prof. Emeritus B. Ştefnescu in September 2013, which made a complete
and eloquent presentation of this period, https://blog.wolterskluwer.ro/arbitrajul-un-mod-de-
solutionare-a-litigiilor-patrimoniale-agreat-de-operatorii-economici-din-romania/; precum şi alte
lucrri de specialitate care trateaz aceast prezentare istoric a arbitrajului: G. Florescu,
Z. Bamberger, M. Sabu, Arbitrajul comercial în România, Ed. Fundaiei România de Mâine 2002;
T. Prescure, R. Crişan, Arbitrajul comercial, Ed. Universul juridic 2010; Deleanu, S. Deleanu, Arbitrajul
intern şi internaional, Ed. Rosetti 2005; G. Dnil, Procedura arbitral în litigiile comerciale interne,
Ed. Universul Juridic 2006; D.M. Şandru, Arbitrajul în litigiile comerciale, Editura Tribuna Economic
2010. These works, as well as those dedicated to the practice of arbitration, present historical
milestones dedicated to this period analyzed in this point 4 of this paper and issues relevant to the
next period, until the entry into force of the new regulations in 2013, see paragraph 5 of this paper.
244 CRISTINA IOANA FLORESCU
Moldova “Calimach Code” of 1817, in Part III, Chapter 2, we find in 11 articles
(Articles 1828-1839) the rules of an arbitration procedure, which could be also used
successfully today. The arbitral tribunal should, according to the Calimach Code,
“follow the order and determination of the perfect compromise without crossing
its borders or diverting. The arbitrator has to make a clear and reckless decision ...
parties being present”.
In Romania at the end of the nineteenth century, the framework for the
organization of commercial arbitration was created by the Code of Civil Procedure
adopted in 1865, which regulated, consolidated and systematized the arbitration in
the Fourth Book, “On Arbitrators”. In the composition of the Code of Civil
Procedure adopted in 1865, the Romanian legislature was inspired by the French
Civil Procedure of 1807, the “Civil Procedure of Geneva Canton” of 1819, the
“French Transcriptions Act” of 1855. In 1900, the Code is amended (Dissescu's
reform), its new form being in force on 1 September 1900, which regulated the
arbitration agreement also in its second form, the compromisory clause, but
without amending other texts in the sense of correlating them with the
compromisory clause, which later gave rise to controversy in the literature and in
practice.20
The provisions of the Fourth Book of the Civil Procedure Code21 were applied
until the communist regime was established, when the liberal principles of the
regulation were in conflict with the new socialist principles. Since then, companies
becoming state property, commercial litigations have been resolved by the State
Arbitration. This was established by Decree no. 259/1949 (and then by Law no.
5/1954), which assigns the judgement of the patrimonial cases between the
Romanian socialist organizations (companies and economic organizations of the
state, cooperative and public) to the State Arbitration.22
Over a few years, in 1953, arbitration reappeared in the form of institutional
arbitration for foreign trade, the only form of non-state arbitration23 that has been
operating in our country for four decades. Decree no. 495/1953, which was
subsequently replaced by Decrees no. 623/1973 and 18/1976, established the
Arbitration Commission of the Chamber of Commerce of People's Republic of
Romania who settled by voluntary arbitration international trade disputes in
20 V. Babiuc, Starea actual a arbitrajului comercial în România, Revista Român de Arbitraj
nr. 1/2007, Ed. Rentrop & Straton, p. 1; C. Florescu, Arbitrajul comercial. Convenia arbitral şi
tribunalul arbitral, Ed. Universul Juridic 2011, p. 33.
21 It should be noted that there were also other substantive changes to the Civil Procedure Code
in 1948 and then in the 1950s and 1952 when it was reconciled with the new vision of that era.
22 D. Clocotici, Consideraiuni privind reglementarea arbitrajului privat în legislaia României,
RDC nr. 6/1993, p.22; V. Roş, op.cit, p. 28; G. Mihai, Procedura arbitral, Universul Juridic 2015, p. 13.
23 I. Nestor, Probleme privind arbitrajul pentru comer exterior în rile socialiste europene, Ed.
Academiei 1962, p. 29; I. Bcanu, Renaşterea arbitrajului ad-hoc, Revista Dreptul nr. 9/1991.
A Century of Romanian Arbitration: Historical Milestones… 245
which one party was a foreign entity and the other a Romanian state-owned
company.24
As mentioned, parallel to the activity of this Court of Arbitration that solved
international litigation, the State Arbitration institution also operated in Romania.
It resolved disputes between state-owned economic companies (industrial,
commercial and services), the only ones that at that time carried out activities that
could be considered commercial. The State Arbitration was organized on two
levels, at county and central (national) level. The latter resolved major litigation
and re-arbitration (recourse). It should be noted that the competence of the Central
State Arbitration, originally called attached to the Council of Ministers, entangled
all the disputes involving foreign trade companies by which the foreign trade
activities were carried out, being about 40-50 such specialized companies resolving
their disputes through this method.
We believe that this State Arbitration was not arbitrarily called ‘arbitration’
and not a state court, probably considering precisely the tradition of the arbitration
institution in Romania. It is important to note that this State Arbitration and the
Arbitration Commission at that time, which were dealing with international
disputes, continued to apply commercial law and its principles when Romanian
law was to be applied. For this reason, the 1887 Commercial Code remained in
force, and has never been explicitly abrogated all that period, although parts of it
have fallen into disuse and were no longer compatible with the realities of that
period. These principles of commercial law also applied in the alternative when
there were no express provisions and in the disputes settled in the State Arbitrages
(49 national counties to a certain lower value, and at the Central State Arbitration
the higher values and also there were the demands of re-arbitration, but at a
different panel than the one on the merits).
The new form of arbitration, practiced and recognized internationally, has
been the subject of valuable studies and works that remain indispensable for
knowing and deepening the issue of arbitration, including ad-hoc arbitration,25
24 Decree no. 424/1972 admitted that contractual legal relations between mixed companies and
Romanian legal persons may be subject to voluntary arbitration. This was the consequence of the 1972
Moscow Convention, which expressly excluded the arbitration jurisdiction for foreign trade in the
socialist countries which were members of CAER, regulating a compulsory arbitration for the
economic and technical-scientific cooperation relations.
25 O. Cpân, Aplicarea în România a Legii-model şi a Regulamentului de arbitraj al
UNCITRAL, RDC nr. 7-8/1996; I. Bcanu, 45 de ani de arbitraj comercial, RDC nr. 7-8/1998; O.
Cpân, Litigiul arbitral de comer exterior, Ed. Academiei 1978; T. R. Popescu, Dreptul comerului
internaional, Ed. Didactic şi Pedagogic 1976; O. Cpân, V. Tnsescu, Instituii de drept
comercial internaional, Ed. Academiei 1982; I. Nestor, Probleme actuale ale teoriei şi practicii
arbitrajului pentru comer exterior în ara noastr, RRD 1968 nr.1; O. Cpân, B. Ştefnescu, Tratat
de drept al comerului internaional, vol. I, Ed. Academiei, 1985; O. Cpân, Capacitatea procesual
a societilor comerciale cu capital de stat în litigiile arbitrale, RDC nr. 6/1993; O. Cpân,
Constituirea unui tribunal arbitral unipersonal, Revista Dreptul nr. 1/1997; O. Cpân, S.
Zilberstein, Legea nr. 105/1992 cu privire la reglementarea raporturilor de drept internaional privat,
246 CRISTINA IOANA FLORESCU
thus ensuring continuity in the applicability of Romanian trade law, which has
paved the way for the foundation and the development of private arbitration after
the events of 1989.
In the period 1953-1989, the envisaged solutions have taken into account the
trend and evolution of arbitration in the world, but they were based not on the
provisions of the Fourth Book of the Civil Procedure Code but on the international
conventions on commercial arbitration to which our country is a party, as well as
the principles specific to international commercial arbitration.
Let us also mention the participation of Romania in the conclusion of
international conventions in the field, which in turn influenced our regulations
both before 1989 and after: European Conventions (1923, 1927, 1961), New York
Convention of 1958, which marks this year the 60th anniversary of its existence, the
Washington Convention of 1965, the Moscow Convention of 1972 (until 1997), the
bi and multilateral Treaties, the UNCITRAL Model Law (1985, updated 2006), and
the UNCITRAL Arbitration Procedure Rules (1976, updated 2010).
Arbitration is therefore an institution with tradition in Romania. The ordinary
law in the field of international commercial arbitration primarily consist of the
international treaties and conventions, but also of the national rules on commercial
arbitration in the states where these procedures are carried out. The legal
regulations that directly affect international commercial arbitration - just a few in
our law - are considered as normative provisions of a special nature. The legal
phenomenon of international commercial arbitration in Romania can only be
correctly delineated in conjunction with the special rules that concern it, with those
forming the ordinary law in the field of arbitration. We note that, as it has been
pointed out in the doctrine, the study of the connection that commercial arbitration
has with the other areas of law has more than purely theoretical significance, since
it allows a more precise definition of the concept of arbitration, of its own features
and peculiarities.26
Revista Dreptul nr. 12/1992; O. Cpân, Noul drept internaional privat român, RDC nr. 5/1993; V.
Babiuc, I. Bcanu, Gr. Florescu, Aspecte noi în arbitrajul comercial internaional, RDC nr. 10/2002; V.
Babiuc, O. Cpân, Situaia actual a arbitrajului comercial internaional în România, în RDC nr.
6/1993 ; V. Babiuc, O. Cpân Capacitatea de a încheia o convenie arbitral în dreptul român, RDC
nr. 6/1996; V. Babiuc, Starea actual a arbitrajului comercial în România, RDC nr. 7-8/2003; I. B canu,
Arbitraj comercial. Convenie arbitral. Condiia arbitrabilitii litigiului. Nu sunt arbitrabile litigiile
privind hotrârile adunrilor generale ale acionarilor unei societi comerciale, RDC nr. 10/2000 ; I.
Bcanu, Arbitrajul ad-hoc şi arbitrajul instituional în legislaia român actual, Revista Dreptul nr.
8/1995 ; I. Bcanu, Litigii arbitrabile, în Revista Dreptul nr. 2/2000 ; Ş. Beligrdeanu, Reflecii în
legtur cu nelegalitatea şi neconstituionalitatea arbitrajului obligatoriu reglementat prin Statutul
profesiei de avocat, în Revista Dreptul nr. 1/1996 ; A. Savin, R. Leşe, O. Cpân, Revocarea implicit
a conveniei arbitrale, RDC nr. 12/1999 ; A. Severin, Competena arbitrajului comercial în lipsa unei
convenii arbitrale explicite, Revista Dreptul nr. 1-2/1990 ; S. Zilberstein, I. Bcanu, Desfiinarea
hotrârilor arbitrale, Revista Dreptul nr. 10/1996 ; V.M. Ciobanu, Tratat teoretic şi practic de
procedur civil, vol. II, Ed. Naional 1997; I. Stoenescu, S. Zilberstein, Tratat de drept procesual civil,
Ed. Didactic şi Pedagogic 1977 şi 1983 and many more.
26 M. Ionaş Slgean, Arbitrajul comercial, Ed. All Beck 2001, p. 3.
A Century of Romanian Arbitration: Historical Milestones… 247
5. Modernization of the Romanian arbitration after 1990
For almost five decades, until 1993, the provisions of the Fourth Book of the
Civil Procedure Code were no longer applied in the private domain, but without
being formally repealed. The incidence of the regulation was restricted to the
foreign trade relations segment, the only arbitration institution in Romania being
the Arbitration Commission attached to the Chamber of Commerce of the Republic
of Romania. Arbitration, as a form of private justice, was not used in the
communist regime, so that in all official editions prior to 1989 of the Civil
Procedure Code, the Fourth Book was accompanied by a note stating that “the
institution of arbitration is no longer practically used today, citizens addressing
exclusively to court or other state or public bodies with jurisdictional powers to
resolve their disputes”. As a result, the chapter on arbitration in the Fourth Book of
the Civil Procedure Code remained in the modernized form from 1900, and the
doctrine and jurisprudence at the stage prior to the years 1944-1948.
After 1989, the international commercial arbitration institution witnessed new
attitudes and regulations designed to outline a coherent legislative framework that
responds to the new needs and developments of domestic and international trade
relations. On the occasion of the amendment of the Civil Procedure Code by Law
no. 59 of 1993, a new regulation was issued with a slightly amended title: “On
Arbitration”, which more correctly expressed the subject matter of the regulation.
The draft of the new Fourth Book was developed by eminent specialists, including
Octavian Cpân, Savelly Zilberstein and Ion Bcanu, and its adoption aligned
our legislation with the European one in this field.
Access to private arbitration was reopened following the 1989 changes by
Decree-Law no. 139/1990 regarding the Chambers of Commerce and Industry of
Romania, which stipulated as an express attribution of the Chamber the
organization of ad-hoc arbitration, as well as the organization and functioning of
the International Arbitration Court attached to the Chamber of Commerce and
Industry of Romania. We therefore consider that the actual modernization of
arbitration has only been made since 1993, when the Fourth Book of the Civil
Procedure Code was amended, taking the UNCITRAL Rules as a model. Decree-
Law no. 139/1990 on the Chambers of Commerce and Industry of Romania
reopened the private domain, especially in the sphere of trade, the access to the
commercial arbitration, normative act that laid the foundations for the re-
establishment of the territorial Chambers of Commerce and Industry.
By the same Decree-Law, attached to the Chamber of Commerce and Industry
of Romania, the Court of International Commercial Arbitration, a permanent
arbitration institution, was established as a body without legal personality. We
mention that both the Chamber of Commerce and Industry and the Court of
Arbitration were not newly created but replaced the former Chamber of
Commerce and the former Arbitration Commission existing since 1953, taking over
248 CRISTINA IOANA FLORESCU
its attributions, thus continuing, developing and expanding the activity and field
of applicability of these institutions. Currently, Law no. 335/2007 on the Chambers
of Commerce repealed Decree-Law no. 139/1990 and became the framework law
of the Chambers of Commerce, taking over the provisions regarding the structure
and organization of internal and international commercial arbitration.
By Law no. 15/1990 on the reorganization of the state economic units as
autonomous public Regies (state own companies) and commercial companies
opened the possibility for new trading companies and autonomous regies to resort
to arbitration for the settlement of disputes. On the other hand, it should be noted
that the new regulations of the Fourth Book of the Civil Procedure Code have had
various and important sources of inspiration, such as our legislative tradition,
enshrined in the 1940 Civil Procedure Code, promulgated but not embedded in
application; Commercial Code Carol II of 1938 adopted, which did not come into
force but which was nevertheless the basis of the trade legislation after 1989; the
experience gained for four decades by the Arbitration Commission attached to the
Chamber of Commerce of Romania (1953-1993); The Report on International
Commercial Arbitration, elaborated in 1972 by I. Nestor within UNCITRAL, as
well as the regulations on arbitration in different countries, with modern
regulations. The provisions are inspired by similar regulations of Western
European countries, such as the French, Swiss, Italian, Dutch Civil Procedure
Codes, English Law on arbitration, international arbitration provisions from
Chapter 12 of the Swiss Federal Law on Private International Law, the UNCITRAL
Model Law of 1985 or the UNCITRAL Arbitration Procedure Rules of 1976 and
rules of permanent arbitration institutions such as from Paris, Stockholm, Vienna,
Zurich, Geneva, New York and others. This aligns the new regulation to the
European one in the matter.27
Consequently, the voluntary character of arbitration was reaffirmed and
restored by the modernization of the Fourth Book by Law no. 59/1993, completing
and amplifying its content. Importantly, it is expressly stated that in the absence of
the parties' stipulations in the arbitration agreement or in an arbitration procedure
applicable to the litigation established by the arbitral tribunal, the provisions of the
Fourth Book will be applied, which are therefore predominantly suppressive and
subsidiary.
These provisions were maintained by the latest reform in 2013, when the New
Civil Procedure Code promulgated in July 2010 entered into force. With the
previous entry into force of the New Civil Code on 1 October 2011, the provisions
of the Law no. 105/1992 on the regulation of private international law relations is
now contained in the New Civil Code, and so was given a new distribution of the
provisions on arbitration in the New Civil Procedure Code.
27 C. Florescu, Arbitrajul comercial. Convenia arbitral şi tribunalul arbitral, Ed. Universul
Juridic 2011, p. 34, 35.
A Century of Romanian Arbitration: Historical Milestones… 249
6. Recent changes in the Romanian arbitration, which further devote the
effort to align with international trends
Arbitration occupies a particular place in the alternative dispute resolution
system as it is different from the other procedures and is closer to the dispute
resolution procedure by holding hearings and similar procedures in ordinary law,
the differences being clearly and explicitly stated in the New Code of Civil
Procedure. The Fourth Book entitled “On Arbitration” is devoted to internal
arbitration, now governed separately from the international one, the Seventh Book
“International Civil Process”, Title IV, “International Arbitration and the Effects of
Foreign Arbitration Awards”. The notion of arbitration encompasses all types of
arbitration: internal / international, ad hoc / institutional, in law / in equity,
commercial / civil (but involving professionals only). We note that institutional
arbitration has distinct regulation according to the New Civil Procedure Code,
namely in Title VII of Book IV. We note that it is not necessarily a distinct
regulation, but a separate organization and presentation in the matter of arbitration
regulation has been established.28
We will not insist on presenting and analyzing the amendments made to the
New Code of Civil Procedure. Although important and numerous have been the
reclassifications and additions to arbitration in general and the entire arbitration
proceedings, we note that they have led towards adapting to the current
requirements, trying to be in tune with international arbitration law and practice.
We cannot, however, say that it was possible to achieve a real revolution and
complete up-to-date regulation as compared to the current state of market
leadership institutions, as we have always been a few steps behind them,
considering they are an aspiration and a model for us and we always try to catch
them and stay competitive.
Throughout the history after the 1989 Revolution there have been various
amendments to the Rules of Arbitral Procedure adopted by the Court of
International Commercial Arbitration attached to the Chamber of Commerce and
Industry of Romania, the most recent from 01 January 2018. The rules contain this
time a strong modern, international, slim and flexible emphasis, being developed
according to the best practices in the field. They propose improving the
functioning of commercial arbitration in Romania by facilitating dispute resolution
in the business environment through this arbitration mechanism, offering an
28 Among the list of books dedicated to arbitration after the entering into force of the New Civil
Code are the following: C. Florescu, Mediere si Arbitraj, Curs in tehnologie IFR, Editura Fundaia
România de Mâine 2015; R.B. Bobei, Arbitrajul intern şi internaional. Texte. Comentarii. Mentaliti,
Ed. C.H. Beck, 2013; G. Mihai, Procedura arbitral, Ed. Universul juridic 2015; G. Mihai, Arbitrajul
internaional şi efectele hotrârilor arbitrale strine, Ed. Universul juridic 2013; B. Ionescu, Repere
eseniale. Practic arbitral comentat, Universul juridic 2017; C. Ignat, Curs de mediere şi arbitraj, Ed.
Universitar 2015.
250 CRISTINA IOANA FLORESCU
efficient, flexible, faster procedure, proposing an accelerated option without
sacrificing the quality but enhancing it.
Although with pronounced international character, in accordance with the
rules of the main arbitration institutions in the European Union, UNCITRAL and
beyond, the Rules adopted could not depart from the applicable legal provisions of
the new Civil and Civil Procedure Codes, in agreement with the most prestigious
doctrinal opinions in Romania and in the field of arbitration. But it is particularly
distinct that the Rules have become truly international to avoid the style that is
simply adapted to national law, with the need to open up and accentuate the use of
newer, more flexible and easy-to-use tools for the virtual space, modern means of
communication, concepts already extensively used also on international level.
Of course, the 2014 Arbitration Rules have been a good starting point, but the
ones in place since the beginning of this year come to bring new elements to the
attention of users and can be considered the most revolutionary so far.
The main novelties brought by the Rules aim to highlight the principle of
procedural autonomy of parties and arbitrators, emphasizing the pro-active role of
the latter, introducing a clear boundary between the written and oral phases of the
arbitration process, emphasizing the importance of written stage, improving
leadership and the administration of the case by the arbitral tribunal, by setting the
requirement for establishing a provisional or complete procedural timetable, the
possibility of bifurcating the procedure, facilitating the taking of evidence and the
appointing of experts, regulating a simplified accelerated procedure, introducing
the institution of the emergency arbitrator, but especially diminishing the
difference of treatment between international and domestic arbitration.
Thus, users are faced with new terminologies, tools and procedures that are
more than welcomed and useful in conducting an efficient modern arbitration
procedure, as close as possible to the needs of each case and in line with
international practice already known by more experienced users. The new
arbitration rules package was intended to translate arbitration into a simple,
efficient and effective procedure for resolving commercial disputes.
An important aspect of how to select arbitrators is whether the permanent
institution chosen by the parties has and applies mandatory or optional reference
to a list of arbitrators approved by the institution, from which the parties are urged
to form their arbitral tribunal. In addition to the rules of organization and
operation of an appropriate organizational structure (own management, auxiliary
personnel specialized in providing arbitral services), the permanent arbitration
institutions may establish their own mandatory or optional lists of arbitrators, and
the parties may appoint their arbitrator(s), in principle, from the persons on these
lists. In our legislation, Art. 618 of the new Civil Procedure Code establishes that
these lists are not binding. It is noteworthy that since the founding of the
Arbitration Court in 1953 to date, this arbitration has had lists of arbitrators
A Century of Romanian Arbitration: Historical Milestones… 251
(judges) including the most remarkable specialists in the field of private law,
university professors, former judges, practitioners with great experience, high
professional, moral and distinguished reputation. As presidents of this Court of
Arbitration in Bucharest there have been distinguished personalities, including Ion
Gheorghe Maurer, Traian Ionascu, Tudor Popescu, Victor Babiuc, Adrian Severin,
Viorel Ciobanu.
7. Back to the Future: Generations of arbitrators, reflections on the future
approach
I have to confess that the “golden age” of the arbitration means for me the 1958
New York Convention, its birth, when the first generation of arbitrators (such as
Peter Sanders, Wellis Melis, Gerold Herrmann, Eric Bergsten, which I had the
privilege to meet) have assumed pioneering, being those who ventured to establish
arbitration as a viable private alternative to court litigation. They have contributed
to the cause of international arbitration and allow us to understand the aspirations
of those who drafted the 1958 Convention and ultimately to achieve uniform
global application.
The legal and procedural framework with which this first generation was
working was rather rudimentary, and the cases it handled were moderately
complex compared to today, particularly with regard to the international sale of
goods, distribution, construction and engineering. For the first generation of
arbitrators, it was particularly necessary to speak different languages, an interest in
international law, international and comparative private law, as well as the desire
to understand and accept cultural differences.29
Given that there has been an increase in the number of cases in which the
parties choose to go to arbitration rather than the state courts, there have arisen a
number of substantive and procedural issues at all stages of the arbitration process,
including the enforcement phase. This has triggered the need for more advanced
regulation to provide more legal certainty to the arbitration process and to win or
regain users' trust. This necessity activated the emergence of a second generation
of arbitration practitioners with more in-depth and broader knowledge. They
focused on evolving and developing procedural rules, as well as on the best
practices that are reflected today in a series of changes to the arbitration rules and
which prove to be a process of updating, modernization and uniformity that must
be permanently maintained.
29 J. Willheim, Why International Arbitration and How? Reflections and Visions for a New
Generation,
28 February 2018, https://www.linkedin.com/pulse/why-international-arbitration-how-
reflections-visions-willheim.
252 CRISTINA IOANA FLORESCU
Based on the experience of the first generation, this second generation has
raised the standards of the arbitration process to the sophisticated and effective
dispute resolution process that is today. We believe that this second generation has
been the longest and most competitive, because it has had to set new higher
standards and has had to cope with historical political and social disturbances that
have left its mark also on arbitration.
Progress, effervescent development and technology have been the engines for
creating and establishing truly global markets in a multitude of sectors and
industries. Global markets require transnational, transactional and legal trading
standards, as well as efficient and modern dispute resolution mechanisms for
smooth functioning. Arbitration is best placed to assume the role of implied
litigation in global markets. This is largely due to the fact that, by its private and
commercial nature, arbitration imposes on users the net competitive advantages
for traders. Competition is the best guarantor for the rapid development needed to
meet market demand.
As a consequence of the evolutionary process in which globalization and
technology are decision-makers, it is no longer enough for a successful career in
international arbitration to include the basic knowledge and set of competencies
that have secured the success of the first generation with the know-how and the
skills of the second generation. Instead, this combination of knowledge and skills is
now only the basic element. In addition to these requirements and abilities
developed by the first two generations, in order to succeed in today's competitive
landscape, the third generation of arbitration practitioners needs extensive
expertise in the legal, business and industry fields that generate the disputes and
which they have to deal with.
As a result of the globalization and the development of this domain, the
arbitrators are also asked for much higher standards of ethics, independence and
impartiality, due to the increased number of relationships that have developed
between the specialists in the field, who often assume dual qualities through their
work, such as lawyers, counselors, experts and arbitrators. As a matter of fact, they
became arbitrators thanks to the experience and the possibility of training before
holding this quality of arbitrator, being a lawyer and specializing in practice of
dispute resolution.
It is also noted that third-generation arbitration practitioners are not only
academics, lawyers of major law firms, renowned lawyers, experts and other
neutral categories experienced in the fundamentals of international law, and with
competences in international arbitration, as well as experts in specific, niche legal
areas, as well as people within certain knowledge in industries such as
construction and engineering, energy, oil and gas, life sciences, media and
entertainment, not to mention, of course, computer technology, which has an
exponential expansion with implications in all branches and in all our current life.
A Century of Romanian Arbitration: Historical Milestones… 253
Efficiency and effectiveness require in-depth knowledge and expertise to cope
with the ever-growing complexity of arbitration, and its users have proven these
needs with certainty. In order to meet the needs of today's users, the new coming
generation will have to change their mentality and inner attitude from being
litigious lawyers and / or arbitrators to becoming real professional dispute
resolution managers, i.e. professionals which at any stage of a possible conflict
consistently determines and reassesses the most efficient and appropriate way of
preventing or solving it and effectively managing each phase of the procedure
according to most newly rules.
This requires more than knowledge of the procedural and substantially
relevant law, namely familiarization and experience with available ADR methods.
It will become a necessity to appreciate and consistently apply the tools for
assessing / analyzing emerging situations and current case management tools
such as early case assessment tools, screening tools, analytical tools, and various
technological tools. Sometimes it seems advisable that senior institutions and
professionals, experienced but not always with contemporary and modern vision
adapted to the ever-changing realities, let the promising current generations create
new horizons and guidelines, new ways to follow. Just thinking revolutionary,
adaptable to diversity, transparency, efficiency, integration of new technologies
and modern communication, progressive and innovation-inducing changes can be
made to maintain and ensure the reconfiguration and balancing of the domestic
arbitration to an international competitive level.
Beside institutions the arbitrators will have also to inform and educate the
parties as much as their conventional representatives (lawyers, legal counselors).
That is why it is becoming a step of a meaningful strategy to choose arbitrators
aware of. We therefore advise the parties to turn to those who do not remain
dependent to the old habits, who are open and prepared to assume their active
role, to keep themselves informed in the field and to improve their continuous
professional training. Admittedly, lawyers need to make these efforts and apply
the same diligence and perseverance in order to provide the most competent and
effective professional advices in the field.
All of this is not enough and cannot be effectively enforced unless the parties
train to understand and grasp the meaning and appreciate the advantages of
arbitration. It is desirable for the parties and their attorneys to accept that excessive
formalism must be overcome, to respect, appreciate and encourage the pro-active
role of arbitrators, to demonstrate cooperation and discipline, to know the
organization and regulation of arbitration, what really means this mechanism in
order to make the best use of its benefits. It takes more than necessary to educate a
254 CRISTINA IOANA FLORESCU
new generation of practitioners30 and specialists in the field, especially by
developing a sustained academic training activity in the field. This is already
happening for a while longer and more commendable, at the universities and
specialized institutions level, organizing specialization courses in arbitration and
all kind of ADR. It is worth mentioning both conferences and seminars that deal
with interesting and topical issues, because they manage to gather opinions, to ask
questions and draw conclusions, to create innovative ideas. Regarding the fate of
the Romanian arbitration, we hope that all this can then generate the necessary
amendments in the legislation, to keep Romania on the map of the international
arbitration and, moreover, to its transformation into a preferred and increasingly
used arbitration place.
Conclusions
Arbitration is primarily used in economic relations that require effective and
specific dispute-settlement mechanisms to ensure the parties' confidence in the
applicable legal regime as well as in the proceedings and timing of the settlement.
The choice of arbitrators, even in institutionalized arbitration, even more so in
ad-hoc arbitration, has the advantage of allowing parties to opt for the decision-
maker they trust, given their conception, training or professional reputation. In the
hands of professional and skilled practitioners, the arbitration procedure can be
adapted to lead to a final decision in an effective and tailored manner.
State judges are required in all cases to strictly apply the law, even if such
application may cause inequalities, whereas arbitrators have the opportunity to
take account when appropriate of commercial usage or the principle of equity. At
the same time, arbitral (final and binding) awards are the result of a procedure that
offers the same guarantees as the judgments of the state Courts, even if the parties
are recognized as having an important role in organizing this procedure.
The historical roots of the traditions have demonstrated with great significance
that the course of arbitration in the history of the last two centuries is an upward
and opening up of new horizons that evolved through the preservation of tradition
from basics to modernity. All of these have led to the current situation where
arbitration has become a method of particular importance in the landscape of the
current economic, financial and technological context in which its attributes of
confidentiality, procedural flexibility and legal recognition contribute to its
preference. The mission of specialists in the field remains to practice it with
30 This aspect is one of the hot issues debated in 2018, see J. Mackojc,10 Hot Topics for
International Arbitration in 2018, 8 March 2018, http://arbitrationblog.kluwerarbitration.com/
2018/03/08/10-hot-topics-international-arbitration-2018/.
A Century of Romanian Arbitration: Historical Milestones… 255
professionalism, dedication and impartiality, to successfully promote its
understanding and use on a large scale.
It is therefore the duty of law-makers, institutions, decision-makers, judges,
lawyers, counsels and experts (all the arbitration players) to ensure that the use
and practice of arbitration is consistent and modern adapted to the particularities
of the national legal system, otherwise there is the risk of moving away the
participants instead of encouraging them to develop and use this institution.
Ensuring a harmonized regulatory framework as well as a safe and consistent
practice encompassing the requirements of the national business community is
essential for the success of a recognized and enforceable award on international
level.