Considerations on the Regulation of Arbitration in The New Civil Procedure Code - with Particular Consideration of Institutionalized Arbitration

• Author: Adrian Severin
• Position: Professor - Faculty of Law, 'Titu Maiorescu' University, Bucharest
• Pages: 1-38

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CONSIDERATIONS ON THE REGULATION OF ARBITRATION IN

THE NEW CIVIL PROCEDURE CODE – WITH PARTICULAR

CONSIDERATION OF INSTITUTIONALIZED ARBITRATION –

1)

dr. Adrian Severin

Professor – Faculty of Law, “Titu Maiorescu” University, Bucharest

Abstract

In the following study, the author makes a relatively exhaustive analysis of the

provisions of book IV in the new Romanian Civil Procedure Code (Law no.

134/2010, a Code already published (on 15 July 2010) in the Official Journal of

Romania, but not yet in force.

In this context, the author examines the provisions of “About arbitration”

(art. 533-612) in the new Romanian Civil Procedure Code, (with a special focus

on the institutionalized commercial arbitration) in relation both to the

corresponding provisions in the current Romanian Civil Procedure Code, and to

the provisions contained in the Rules of Arbitration of the Court of International

Commercial Arbitration attached to the Chamber of Commerce and Industry of

Romania.

Keywords: the new Romanian Civil Procedure Code; regulations regarding

arbitration; special focus on the institutionalized commercial arbitration

1. The Romanian Parliament adopted a new Civil Procedure Code

2)

. Its

coming into force shall be established by a separate law

3)

. Until then, the

preliminary measures have to be taken, rendering its application efficient and

accurate as soon as it gains mandatory powers.

The new code continues to regulate arbitration in Book IV, but it brings

several innovations, among which, the most important is the addition, at the end,

of a title (title VII) regarding institutionalized arbitration.

2. The first article of title I (General Provisions) of Book IV, art. 533, includes

the definition of the notion of arbitration. In this respect, para. 1 provides that

“arbitration is an alternative jurisdiction having a private nature”. Of course, the

1)

Article translated from the Romanian language. It was published in “Drep tul” Magazine

No. 1/2011, p. 40-75.

2)

Law No. 134/20 10 regarding the Civil Procedure Code was published in “Monitorul

Oficial al României”, Part I, No. 485 of 16 July 2010.

3)

According to art. 1.119 para. 1 of Law No. 134/2010 regarding the Civil Procedure Code,

“Within 6 months from the publication date of this code, the Government shall submit to the

Parliament for adoption the draft law for the application of the Civil Procedu re Code”.

2

definition is insufficient to clarify the entire contents of the notion and it’s the

doctrine’s role to supplement it. Independently from this fact, the positive law text

has a big importance, having multiple consequences. Thus, it may be noticed that

the Romanian lawmaker recognizes arbitration as a form of jurisdiction and, by

this, it adopts the theory of its jurisdictional nature

4)

. The proximate genus of

arbitration is state jurisdiction. The specific difference resides, according to the

Romanian lawmaker, in the private nature of the jurisdiction. The first

consequence resulting from such specificity is provided in the very para. 2 of art.

533. According to such, “for the administration of this jurisdiction, the litigants

and the competent arbitration tribunal may establish procedure rules derogating

from the common law (…)”. What happens if contradictions appear between the

rules established by the parties and the rules established by the arbitration

tribunal? Which rules shall prevail? The answer may be deducted from even the

order of the enumeration chosen by the lawmaker: first the litigants and then the

arbitration tribunal.

The answer also requires, however, the clarification of the relationship

between the private nature of the jurisdiction and the interests justifying the

recognition in the public order of a private jurisdiction. These are interests

resulting from the logic of some activities which, although conducted through the

agency of private law subjects, have a significant impact on the public life.

Consequently, the private nature of arbitration is based on the private nature of the

interests of the litigants, worth of being protected also in the public order, and not

on the private nature, meaning non-state nature, of the arbitration tribunal. For this

reason, the holders of the right to derogate from the common law procedure rules

are, primarily, the litigants and, only in subsidiary, the arbitrators forming the

arbitration tribunal.

The conclusion remains also valid in the case of institutionalized arbitration

when the possibility of the parties to derogate from its procedure rules is

excluded, limited or circumstantiated. Even then, the procedure rules are imposed

by virtue of the parties’ option for a certain arbitration institution, and not as a

result of the arbitrators’ expression of wills. In this meaning, the arbitration is the

“parties’ jurisdiction” recognized by the state – in opposition with the state’s

4)

In respect of the nature of arbitration, see: V. Babiuc, Dreptul comerŃului internaŃional,

Atlas Lex P ublishing House, Bucharest, 199 4, p. 173-174, A. Severin, Elemente fundamentale de

drept al comerŃului internaŃional, Lumina Lex Publishing House, Bucharest, 2004, p. 379-381, V.

Roş, Arbitrajul comercial internaŃional, Monitorul Oficial Publishing House, Bucharest, 2000, p.

77-82, I. Deleanu, Arbitrajul intern, in “Arbitrajul intern şi internaŃional” by I. Deleanu, S.

Deleanu, Arbitrajul intern şi internaŃional, Rosetti Publishing House, B ucharest, 2005, p. 11-15,

T. Prescure, R. Crişan, Arbitrajul comercial – modalitate alternativă de soluŃionare a litigiilor

patrimoniale, Universul Juri dic Publishing House, Bucharest, 2010, p. 48-52. The French

literature includes references to the co ntractual source of the jurisdictional mission of the

arbitrator. See C. Jar roson, La notion d’arbitrage, Librairie Générale de Droit et de Jurisprudence,

Paris, 1987, p. 101-110.

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jurisdiction–, and not the “arbitrators’ jurisdiction”.

The prevalence of the procedure rules established by the parties over those

established by the arbitration tribunal is, moreover, explicitly worded in respect of

the institutionalized arbitration in art. 608 para. (2) providing that, “in case of

opposition between the arbitration convention and the institutionalized arbitration

regulation to which it refers, the arbitration convention shall prevail”

5)

.

This being the situation and, because the parties organize the jurisdiction by

their meeting of wills, which has to be acknowledged also by the arbitrations (in the

case of institutionalized arbitration, we are dealing with a “public offer of

arbitration” accepted by the litigants through the arbitration convention), the result

is that the arbitration activity also has, by its nature, a contractual dimension. The

very insertion of consensualism in an activity of an essentially jurisdictional nature

renders the respective jurisdiction useful for the (business) environment to which

the litigants belong. We find here the pragmatic reason for which the parties have to

be given the possibility to stand away, by arbitration, as much as necessary from the

state jurisdiction in order to satisfy the particulars of their case. Any limitation of

this capacity renders the resort to arbitration deprived of any interest.

Moreover, the fulfillment of a jurisdictional role

6)

being at stake, the

arbitrators are neither employees – of the parties or of the arbitration tribunals, as

the case may be – to which the labor law regulations should apply (as a Court of

Appeal in Great Britain

7)

has erroneously established recently), nor suppliers of

commercial services to which the public law norms regarding the economic

activities generating profit should apply (as the European Commission has been

considering, until recently, in its directives regarding the harmonization of

budgetary policies).

Reinforcing this latter aspect, art. 607 para. (1) last thesis specifies that “the

activity of the institutionalized arbitration does not have an economic nature and

does not pursue to obtain profit”. Although it refers to institutionalized

arbitration, the quoted text covers all the forms of arbitration, including,

consequently, the ad-hoc arbitration. Hence, another consequence arises with

other two effects. The main consequence is that the arbitration duties have

exclusively the purpose to cover the expenses related to the procedure (including

the arbitrator’s fees). The sub-consequences are: the arbitration duties may not be

subject to any form of taxation which refers to the profit yielding economic

activities (VAT type); from the arbitration taxes, no income to the budget of other

5)

This rule has explicit and implicit limitations which shall be presented b elow (see item 6).

6)

Explicitly defining arbitration as a jurisdiction a nd leaving its consensual dimension to be

deducted from the private nature of the jurisdiction to which the text of the law refers, the

Romanian lawmaker adopts the solution of the mixed nature o f arbitration – both jurisdictional and

consensual – in a nuanced form which stresses t he jurisdictional element. This seems to be the

essence of the arbitration procedure, while the contractual element defines onl y its nature.

7)

Resolution of the Court of Appeal of London No. 1287/20 10 (not published).

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institutions may be taken (such as the chamber of commerce attached to which the

courts of institutionalized arbitration operate).

3. The capacity of the parties to establish specific procedure rules has,

however, some limitations. Thus, according to art. 533 para. (2), the derogation

from the common law may take place on “condition that the respective rules are

not contrary to the public order and imperative provisions of the law”. The last

thesis of the quoted text (referring to the imperative provisions of the law) is, in

our opinion, in contradiction both with the first paragraph of art. 533 presenting

the arbitration as an alternative jurisdiction, and with its private nature.

Compelling the parties to observe the public order even when we are dealing

with a private jurisdiction is correct because the public order belongs to the

fundamental principles that a state understands to place at the basis of its social

organization. Nobody may derogate from such without corrupting the discipline

and coherence of that respective society.

In exchange, submitting the arbitration procedure to all the imperative norms

of the law means minimizing, without any reasonable explanation, the alternative

nature of the arbitration jurisdiction and, at the same time, imposing drastic and

unjustified limitation to the expression of the private interests which generated it.

As long as the state had to acknowledge the need for an alternative jurisdiction,

this means that the de facto situation had such outstanding particulars, that the

state jurisdiction was unable to satisfy its exigencies only by minor adaptations

and fine tuning. Also, while the state decided to recognize such a jurisdiction in its

public order, this means that it found the interests which required it as sufficiently

legitimate and, especially, sufficiently important for the entire society so as to

grant them public protection by the legislative regulation. This leads to the

conclusion that it was normal that the lawmaker permitted the interested parties to

move away as much as possible to the common law governing the public

jurisdiction, obviously, provided that the limits of the public order are not

exceeded. Otherwise, the procedural differences are practically limited to the

establishment of the arbitration tribunal, which is way too little, turning arbitration

into a jurisdiction of arbitrators and leaving no interest for the parties to resort to it

when the law applicable to the procedure is the Romanian law.

Echoes of this statist mentality, which is in contradiction with the logic of

arbitration asserted by the lawmaker itself may also be found in other provisions,

of which we remind only art. 599 regarding the legal action for annulment, which

in para. (1) letter h) includes among the reasons for annulment of the arbitration

award the reason that “the arbitration award infringes the public order, the good

character or the imperative provisions of the law”. Given that the grounds for

promotion and admission of an action for annulment are mainly, of a formal

(procedural) nature, this text only consolidates the text of art. 533 quoted before.

Our criticism is also in line with international trends. Thus, the New York

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Convention on the recognition and enforcement of foreign arbitral awards

8)

(to

which Romania is a party) allows the refusal to attach mandatory consequences to

the award only if such was ruled in breach of the public order norms, and not in

breach of the imperative legal provisions. The verification of compliance with all

these provisions would be the equivalent of re-judging the case, which is contrary

to the arbitration theory.

Moreover, noticing the difficulty to define the boundary between the public

order norms and the imperative norms (which have an extended scope) and

intending to avoid the situation to reach, because of the confusion, the

cancellation of an arbitral award which does not affect in essence the public order,

the French jurisprudence held that, in order to cancel an arbitral award for reasons

of infringement of the public order, the infringement has to be “substantial,

effective and flagrant

9)

”. We consider that, de lege ferenda, such a provision

should also be included in the Romanian law.

4. The limitations brought by art. 533 para. (2) are the more drastic that, in the

trial-related law, most of the provisions have an imperative nature. The fact that

many of these are not compatible with the logic of arbitration is more serious. For

this reason, the doctrine and the jurisprudence are called to an imaginative and

brave effort of accommodation.

To which provisions does art. 533 para. (2) of the new Civil Procedure Code

refer? It refers to the procedure rules regarding the “administration of arbitration”.

Consequently, it refers to the imperative rules of common law regulating

arbitration, and not to the norms of trial-related civil law in general. Given that

art. 533 para. (1) specifies that the arbitration is “an alternative jurisdiction” (and

the Civil Procedure Code itself reserves a special regulation for it) the result is

that the common law in the matter of a private jurisdiction may not consist of the

rules applicable to the public jurisdiction from which it presumably is essentially

different. Otherwise, the term “alternative” loses its meaning.

Which is the common law of the arbitration procedure? This is Book IV of the

Civil Procedure Code

10)

. In order to be applied to the arbitration, the norms

8)

Romania acceded to the Convention on the Recognition and Enforc ement of Foreign

Arbitral Awards, New York, 1958, by Decree No. 186 /1961, published in “Buletinul oficial No. 19

of 24 July 1961.

9)

For a comment of the Thales case settled by the Court of Appeal of Paris on 18 November

2004, see S. Lazareff, Arbitrage et ordre public: priorité à l’exécution des sentences, in “Les

Cahiers de l’Arbitrage No. 2/2006”, p. 3-4. For a previous quotation of this case, see V. Babiuc,

Ordinea publică de drept internaŃional privat în practica arbitrală (I), i n “Revista Română de

Arbitraj” No. 3/2007, p. 1, footnote no. 1. The French jurisprudence reasserted the viability of the

principle e stablished by the T hales case. In this respect, see Linde case, published in “Revue de

l’Arbitrage”, 1, 2010, p. 124-139, with a Comment by F. X. Train.

10)

See the pr ovisions of art. 568 (1) according to which “The parties may establish, in the

arbitration convention, the procedure rules applicable to arbitration or may empower the arbitrators

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included in other parts of the new Civil Procedure Code were explicitly received

in Book IV

11)

. Once they were integrated here, they have to be interpreted in the

light of the particulars of the arbitration differentiating it from the courts of law.

To the extent that, in the performance of the arbitration procedure, the need

arises for regulations absent both from the arbitration convention, and from the

common law of arbitration, as previously identified, the arbitrators may resort to

the pertinent norms of civil procedure applicable to the state jurisdiction, but not

as a subsidiary law, but resorting to the analogy of the law. But, passing through

the filter of analogy, the imperative nature of a norm called to govern the state

jurisdiction may be lost when the respective norm is applied by an alternative

jurisdiction whose special procedural law is even the “law of the parties”

(meaning precisely the arbitration convention). Mutatis mutandis, in the case of

the institutionalized arbitration, the special law consists of the procedure rules of

the arbitration institution chosen by the parties

12)

, and the common law is Title VII

of Book IV of the new Civil Procedure Code. In case of need, the norms of other

titles of Book IV, which represents the common law for the ad-hoc arbitration,

shall apply by analogy for the institutionalized arbitration. Consequently, even the

imperative procedure norms of Book IV which are not included in Title VII of the

same book, no longer have a mandatory nature for the institutionalized arbitration.

According to art. 536 para. (2) of Book IV, the parties may establish (by their

convention) any norms regarding the good performance of arbitration, provided

that the public order, good character and imperative provisions of the law are

observed. According to para. (3) of the same article, if such rules are absent – in

our interpretation, either because the parties did not establish them at all, or

to establish such rules. Such rules shall be supplemen ted, if applicable, by the provisions of this

book” (our emphasis; A.S.). Only if neither the parties nor the arbitrators establish the a rbitration

procedure rules applicable to the case, accor ding to art. 568 para. (3) “the arbitration procedure is

the one established by this book”. The provisions of Book IV of the Civil Procedure Code clearly

appear, thus, as having a suppletive nature in principle.

11)

See, otherwise, the pr ovisions of art. 567 (2) specifying that, despite the normative

freedom granted to the parties and to the arbitrators, “the fundamental principles of the civil trial

provided in art. 5 para. (1 ) thesis II, arts. 8-10, arts. 12-16, arts. 19-21, art. 22 paras. (1), (2), (4),

(5) and (6) and art. 23 are applicable accordingly (our emphasis; A.S.) also in the arbitration

procedure”. In the same manner, art. 554 (1) specifies that the inco mpatibilities provided for the

judges are also valid in the case of the arbitrators, without mentioning them explic itly.

12)

The new Civil Proced ure Code is explicit in this respect, providing i n art. 568 (2) that

“When the parties resort to institutionalized arbitration, the provisions of art. 608 para. 3 shall

apply”, i.e. the rules of institutionalized arbitration valid on the date of seizing it. The literal

interpretation of art. 568 (2) corroborated with art. 568 (1) leads to the conclusion that, unlike the

ad-hoc arbitratio n, in the case of which the parties or the arbitrators, as the case may be, should

take into account certain general pro visions regulating the civil trial within the state jurisdiction

(such provisions no longer having a suppletive nature), in the case of the institutionalized

arbitration, the freedom of the permanent arbitration i nstitution to establish its own pro cedure rules

is unlimited. This, obviously, within the limits established by Title VI I of Book IV.

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because they did it in breach of the imperative norms of the law – “the arbitration

tribunal may establish the procedure to be followed as it thinks appropriate”.

Showing, including in the case of an ad-hoc arbitration, more confidence in the

tribunal (consisting of professionals of the law) than in the parties (professionals

of other fields), the lawmaker may not longer impose to the arbitrators the same

restrictions regarding the establishment of the procedure rules. Just on the line,

they may replace a procedure norm established by the parties without observing

the imperative provisions of the common law, by another norm necessary to the

case, which, in its turn, moves away from the respective imperative provisions. In

case of a possible action for annulment, the competent court may not, under these

consequences, admit the application for reasons of infringement of the imperative

procedure provisions of the law

13)

.

The situation is the same in the case of the institutionalized arbitration. Thus,

art. 610 para. (1) provides that the “Procedure rules of the institutionalized

arbitration shall be adopted by its management according to its operation norms

(…)”. The management of the institutionalized arbitration established by its

incorporation deed thereof has therefore full competence in adopting the rules of

procedure, without any restriction. As the lawmaker has repeatedly referred to the

obligation to observe the imperative norms of the law, when it no longer makes

this reference, we may think it was by accident.

It is true that, in these latter hypotheses, the law no longer refers to the public

order, also. We think that the observation of the public order must be deducted

13)

Able to answer the exigencies of the field in which the litigants operate, the arbitration

procedure is linked to the idea of professionalism, meaning that several trial-related guarantees

offered by the common law to subjects having various professions and being unfamiliar with the

regulation of their di sputes by judicial means are no longer maintained i n arbitration. This ensures

celerity in overcoming the uncertainties related to the rights in d ispute, taking advantage of the fact

that, since t hey are performed between professionals for which the fluidity of the commercial

circuit is more important than the compliance of the ruling with the formal legal logic and which

do not require the formalism of the procedure in order to become aware of a nd protect their

interests, such processes may accept pragmatic simplifications. Starting from the observation t hat

the arbitration is a procedure of the “infor med parties” having as its premise t he professionalism of

the participa nts in the process, some a uthors (see Ş. Beligrădeanu, DiscuŃii în legătură cu unele

aspecte privitoare la reprezentarea convenŃională şi la asistarea părŃilor în arbitrajul

instituŃional-jurisdicŃional înfăptuit de Curtea de Arbitraj Comercial InternaŃional de pe lângă

Camera de ComerŃ şi Industrie a României, in “Revista Română de Arbitraj” No. 1/2009, p. 29-3

8) argued that if, obviously, the parties which define the arbitration co nvention may not be

requested to have legal studies (assistance b y legal pro fessionals being however more than

recommended), at least within the actual performance of the arbitration procedure they should be,

on a mandatory basis, represented by legal counsels or lawyers. Thus, the arbitration’s deviation s

from the common law or from the p rocedure of the state courts may be correctly managed from a

legal standpoint, avoiding the risk that the funda mental right to defense and equitable trial of the

litigants be affected. T he new Civil Procedure Code did not retain this idea. We believe, taking

into account inclusively the experience of the current arbitra tion practice, either domestic and

international, that such an approach is worth being promoted de lege ferenda.

8

from the normative set and from the necessity of the existence of an essential

benchmark rendering the applicable law and the rule of law it grounds coherent.

However, what happens if the arbitration tribunal omits to establish the procedure

rules? (obviously this refers to the ad-hoc arbitration) In such cases, art. 536 para. (3)

provides that “the following rules shall apply”, namely the rules included in Book

IV, from title II to title VI. Thus, the respective rules are clearly indicated as having a

subsidiary nature as a whole; consequently, also the provisions, otherwise imperative,

of other parts of the new Civil Procedure Code to which the respective texts of Book

IV refer and that they incorporate. By this, the scope of the suppletive norms in the

field of arbitration procedure extends considerably.

5. But, are all the norms included in Book IV susceptible of being considered

as suppletive norms? The answer requires several distinctions. First of all, the

distinction between the procedural norms and the administrative norms. We are

considering here, in particular, the provisions of title VII regulating the

relationships between the institutionalized arbitration and the institutions attached

to which it is organized. Since they are not norms regarding the arbitration

procedure, but norms regarding the organization and operation of the arbitration

as an administrative institution (called to organize the application of the law and

to concretely apply it), they are not only imperative, but also, the parties may not

derogate from them. The parties may establish norms regarding the organization

and operation of the arbitration tribunal, but not norms regarding the organization

of the arbitration institution.

Secondly, it must be noticed that, among the provisions of Book IV, there may

also be norms of public order which, having a constitutional nature, may not be

turned into suppletive norms not even by an organic law, like the new Civil Procedure

Code. This is an organic law in trial-related matters, not in constitutional matters.

Such public order regulations are, for instance, the parties’ right to defense – a

fundamental right of citizens in all democratic constitutional systems. Such a right

shall receive however specific applications in various branches of the state’s

system of laws. One of them is the trial-related civil law. Another is the arbitration

law, with its sub-branch, the international arbitration law. Such distinctions lead to

the conclusion that each of the respective branches has its own public order. For

this reason, when the lawmaker makes reference –implicitly or explicitly,

expressly or tacitly – to the observance of the public order, it separates the public

order of the civil trial from the public order of arbitration, and the public order of

domestic arbitration from the public order of international arbitration.

Consequently, when verifying the compliance of the arbitration procedure rules

with the public order norms, such verification is related to the respective state’s

concept of the public order in the arbitration field as a non-state jurisdiction, and

not to the public order of the civil trial administered by the state courts. In its turn,

such a concept may be different when we refer to international arbitration.

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Returning to the example of the right of defense, the recognition, protection and

exercise of such right must take place under conditions of compatibility with the

features of the arbitration or, in other words, with the features of the legitimate

interests which justified the acceptance of such a private jurisdiction as alternative

to the state courts, in the nations’ rule of law. For this purpose, it is beyond all doubt

that the celerity is an essential feature of arbitration. Especially when it is a

commercial arbitration, because the purpose of any form of trade is profit (finis

mercatorum est lucrum), and it depends on the circulation speed of the capital, in its

turn dependent upon the clarification of the disputes, it is clear that the arbitration

procedure must be conceived so as to answer the exigency of celerity resulting from

the economic laws specific to the commercial activity. The sooner is a dispute

settled, the faster are the certitudes feeding the engine of engaging in legal

relationships, meaning the trust

14)

restored. This is why, the establishment of the

correct contents of the right to defense should pursue a balance between the

exercise of such right and the need for celerity intrinsic to the arbitration procedure

for which the parties opted. Such a balance is concretely established taking also into

account that, since they are professionals, the parties have sufficient systems to

rapidly organize their defense. Thus, the arbitrators shall have the possibility to

reject the applications for postponement of the judgment because of the absence of

defense (namely for hiring a lawyer) or in order to review new documents whose

assessment does not require long time, and may be made on the spot. In the same

manner, the summoning procedures of the parties shall be simplified also using for

this purpose electronic means such as e-mail or fax. On the same basis, the

arbitrators may assess more exigently the abuse of the right to defense. In such

actions, the arbitration tribunal may also rely, as the case may be, on the pertinent

commercial practice

15)

. For this reason, it may be said that the limitation of the

exercise of the right to defense by the parties in the manners in which the respective

right is regulated by the civil trial-related law and observed by the courts of law

does not constitute an infringement of the public order, if such limitation is justified

by the skills specific to the trade professionals, has as its purpose the acceleration of

the settlement of the dispute and the limitation of procedural abuses, as well as if

the commercial practice in this field is applied.

The case of the principle of contradictoriness is the same. For the same

considerations, the contradictory nature of the debates may also be ensured by

correspondence, referring to the situation in which not all the parties are

simultaneously present before the tribunal to fight their judicial battle. In fact, in

14)

One of the reasons for which traders prefer arbitration is tha t, usually the term of

settlement of the disputes is shorter than in the courts of law (see V. Babiuc, op. cit., p. 170).

15)

For a conceptualization of the commercial practices from an international perspective, see

I. Rucăreanu, UzanŃele comerciale internaŃion ale, in “DicŃionar j uridic de comerŃ exterior ” by B.

Ştefănescu, O. CăpăŃînă (coordinators), Editura ŞtiinŃifică şi Enciclopedică Bucharest, 1986, p.

367; also, see A. Severin, op. cit., p. 80-103.

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the international commercial arbitration practice (involving litigants and

arbitrators living at great distances from one another, as well as tribunals without

a stable office) the most part of the procedure takes place by correspondence, the

presence of all participants in the trial being requested only for a possible hearing

of the witnesses and formulation of conclusions.

With reference to the institutionalized arbitration, art. 610 para. (4) provides

that “the litigants’ right of defense and the contradictoriness of the debates are

guaranteed”. This provision has an imperative nature. At first sight, it was not

necessary because, given that it referred to public order norms, it is implied that,

at any rate, the respective principles had to be observed. The fact that the

lawmaker felt the need to expressly repeat in the title of the Civil Procedure Code

specifically dealing with the institutionalized arbitration shows that, on the one

hand, in its opinion, the nature of the arbitration could have justified, in the

absence of the respective specification, even the departure from such public order

norms (which would seem excessive to us), and, on the other hand, that, in their

application, the arbitrators are called and entitled to grant them a content different

than the one given by the interpretation of the courts of law.

The adaptation of the public order norms to the particulars of the arbitration

(or, more precisely, the recognition of a public order specific to arbitration) may

create difficulties and controversies. Thus, a British court of law – to which an

action for annulment was lodged, considered

16)

that an arbitration clause

stipulating that the arbitration tribunal has to be formed of arbitrators of a certain

nationality was null or, in another case

17)

, of a certain religion. The arguments of

the rulings were that such a clause would infringe the obligation of non-

discrimination, as revealed by the European Charter of Fundamental Rights, the

European Union Directive against discrimination and the pertinent British

legislation. The described interpretation could have stood if it had regarded the

interdiction of employing judges because of their nationality or religion. However,

in the case of arbitration, by establishing such criteria for the composition of the

arbitration tribunal, the parties did not intend to proceed to discriminations in the

large anonymous mass of the persons who would have had the theoretical

vocation of becoming arbitrators, but to make sure that, in the exercise of their

right to appoint the arbitrators, none of them shall proceed to appointments

limiting or questioning their neutrality and objectivity. In that case, the arbitrators

of a certain religion or nationality could have been suspected of sympathizing for

one party or the other

18)

; this problem may not arise in the domestic arbitration,

16)

See judgment no. 1154/2010 of the Court of Appeal of London, not p ublished.

17)

See judgment no. 1219/2010 of the Court of Appeal of London, not p ublished.

18)

This problem arises, in particular, in the cases having as their object disputes resulting in

relation to the execution of the state contracts or, in ge neral, in the cases in which the state is a

party. In such situations, there is a suspicion that the arbitrators who are citizens of the respective

state may be inclined to favor it.

11

but it may arise in the international arbitration. The guarantee of absolute

neutrality specific to arbitration took in the case mentioned above the form of

pseudo-discrimination

19)

.

Thirdly, among the provisions of Book IV regarding the arbitration procedure,

to which title I makes a general reference as to subsidiary rules, there are some rules

whose infringement is expressly sanctioned by absolute nullity. It is difficult to

argue that, including from the standpoint of the previous considerations, such

provisions do not have an imperative nature. Consequently, derogating from such

provisions may not occur without the risk of subsequently justifying the admission

of an action for annulment of the arbitral award. What may be done, however, is

that, in the application of the respective rules, their rigor is attenuated by means of

interpretation, so that to ensure compatibility with the particulars of the arbitration.

At any rate, being inserted only in the articles referring to the ad-hoc arbitration, the

provisions mentioned do not apply to institutionalized arbitration.

In the same context, it should be also specified that the repetition in Book IV,

regarding arbitration, of norms intended to regulate, on penalty of nullity, the

procedure of the state jurisdiction does not preserve their imperative nature if the

reference to the respective sanction is not preserved or if the imperative nature of

the norm does not clearly result from explicit equivalent wordings. Both the entire

regulations of Book IV, and the general theory of arbitration as alternative

jurisdiction lead to the conclusion that, usually, the legal norms regarding the

arbitration procedure have a suppletive nature and only in exceptional cases they

are imperative. Given that also in this matter the exceptions are of a strict

interpretation, they should be explicitly indicated by the lawmaker.

6. Art. 610 inserts an apparent limitation of the parties’ right to establish the

arbitration procedure rules in the case of institutionalized arbitration. Thus, after

para. 1 provides that the procedure rules are established by the management of each

Court of Arbitration, para. (2) provides as follows: “By the appointment of a certain

institutionalized arbitration as being competent in the settlement of a certain

dispute or type of disputes, the parties automatically opt for the compliance with its

procedure rules. Any derogation from this provision shall be null unless, taking into

account the circumstances of the case and the contents of the procedure rules

indicated by the parties as being applicable, the management of the competent

institutionalized arbitration decides that the rules chosen by the parties may also be

applied, establishing if the application of the latter is effective or by analogy”. As

19)

Interpretations, such as the one adopted by the British courts of law, sha ll not equalize the

chances of potential arbitrators of being appointed as members of the arbitration tribunals, but

shall determine the litigants not to appoint London as place of the arbitration, in order to avoid the

application of the British law as the law governing the procedure or in order not to expose

themselves to such i nterpretations by the British courts of law vested with the settlement of the

actions for annulment.

12

we have shown, in reality, this does not concern the limitation of the parties’ right

of decision in respect of the procedure, but even an extension thereof.

First of all, we emphasize that para. (1) of art. 610 establishes the exclusive

right of the management of the courts of arbitration (as such is structured by its

establishment deed) to adopt arbitration procedure rules applicable in all the cases

in which the respective institutionalized arbitration is seized. The respective right

has to be also regarded as an obligation because the existence of the said rules is a

defining element of the institutionalization of arbitration (a right in the

relationships with the institution attached to which the arbitration operates and an

obligation in the relationship with the persons susceptible of being parties in the

arbitration process).

The norm to which we refer does not belong however to the trial-related law,

but to the administrative law. It does not govern the relationship between the

litigants and the arbitration tribunal, but the relationship between the Court of

Arbitration and the institution which created it and attached to which it operates

(usually, a chamber of commerce). The provision is based on an obvious

argumentation – each arbitration institution establishes its own procedure rules as

an expression of its autonomy and as an identification element – and it is not new

in the Romanian legislation

20)

. The novelty consists of the fact that, this time, it is

a general norm consolidated by its connection to the provisions of art. 607 para. 2

establishing the autonomy of the institutionalized arbitration by reference to the

institution which created it, compelling, at the same time, the latter to take the

necessary measures in order to guarantee the respective autonomy. Being an

administrative norm included in the Civil Procedure Code, it has an imperative

nature and, consequently, no derogation from it is possible. For this reason, it

leaves outside the law the current practice of the Chamber of Commerce and

Industry of Romania which adopts in its management forums the Procedure Rules

of the Court of Arbitration operating attached to it, in order to send them

afterwards to it for confirmation. Although taking the form of a recommendation,

such an action represents both the non-fulfillment of the obligation to guarantee

the autonomy of the Court, and the infringement of its right to establish its own

procedure rules free from any pressure and interference.

The question which arises is: which are the guarantees, respectively the

sanctions in respect of the compliance of the provisions of art. 607 para. (2)

corroborated with art. 610 para. (1)? The question is even more pertinent because

20)

A similar provision was inserted in Law No. 335/2007 of the chambers of commerce in

Romania. According to art. 29 para. (5) o f this normative act, “The procedure rule s of the Court of

International Commercial Arbitration shall be proposed by the president of the Court and shall be

approved by its college”. The same principle was also established b y art. 13 para. 4 of Decree-Law

No. 1 39 of 12 May 1990, published in “Monitorul Oficial al României”, Part I, No. 65/12 May

1990, according to which “The procedure rules of the Court of International Commercial

Arbitration shall be approved by its college”.

13

the management of the Court of Arbitration is appointed by the management of

the Chamber of Commerce which organized it and attached to which it operates,

sometimes receiving (as it is currently the case, in fact, in Romania) an indemnity

paid from the budget of the latter. But, the appointment and the indemnity are two

efficient means of pressure. The first consequence resulting from here is that the

mandate of the management of the court of arbitration has to be established for a

certain term

21)

and that it may not be revoked before expiry except for well-

grounded reasons which may be supervised by the courts of law

22)

.

The litigants are protected against a sudden modification of the arbitration

procedure rules following abusive interventions from outside the respective

arbitration institution, by the possibility offered to them based on art. 608 para. 3

(identical with art. 610 para. 3)

23)

to agree that the rules applicable to the

procedure are different from the rules existing as of the date of the arbitration

action; so, maybe, those existing as of the date of conclusion of the arbitration

convention

24)

. If such an agreement is not included in the arbitration clause and it

may not be reached upon seizing the arbitration court, the party prejudiced by the

abusive modification of the procedure shall have, we believe, the possibility to

initiate an action for damages against the institution (Chamber of Commerce)

attached to which the arbitration operates.

A fortiori the litigants may file an action in tort against the respective

institution when other breaches of the autonomy of the arbitration court cause

them damages. Such breaches may regard, for instance, the confidentiality of the

arbitration process or the abusive intrusion of the institution organizing the

arbitration in the composition of the arbitration tribunal or even the cases in which

that institution reserves the exclusive rights in respect of the appointment of

21)

According to art. 3 para. 2 of the Regulation of the College of the Court of International

Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania, “The

mandate of the members of the College shall be of three years”. The term o f this mandate is equal

to the term of the mandate of the Court of International Arbitration attached to the International

Chamber of Commerce in Paris.

22)

According to art. 3 para. 3 of the Regulation of the College of the Court of International

Commercial Arbitration, “Before reaching its term, the mandate shall cease: for natu ral causes,

by resignation, b y release from o ffice according to a proced ure in correlation with the

appointment” (our emphasis; A.S.). Since the appointment of the “management” has a

discretionary nature, according to the text quoted above, it results that the release from office may

also be discretionary which is obviously not compatible with the idea of autonomy of

institutionalized arbitration. Given that the re lationships between t he members o f the College of

the Court and the Chamber of Commerce and Industry of Romania have a legal nature specific to

administrative relationships, our opinion is that any potential disputes arising fro m the respective

relationships fall under the jurisdiction of the administrative dispute courts.

23)

Probably, because of a typographical error, the same te xt is identically repeated in art. 608

para. (3) and art. 610 para. (3).

24)

The consequences of art. 608 para. (3) shall be presented in more detail in a paragraph

below (item 15).

14

arbitrators

25)

(when the arbitrators fail to appropriately fulfill their mission, the

litigants which initiate an action for professional liability against them might also

initiate it against the Chamber of Commerce and Industry of Romania which

played a role in their appointment).

Besides any such remedies, the litigants always have the possibility to use the

“commercial weapon”, meaning refusal to resort in the future to the problematic

arbitration institution, as well as to warn the business environment on the abusive

limitation of its autonomy.

Given that the arbitration is an alternative jurisdiction and, consequently, the

general condition of justice in a country depends on its good operation, we believe

that the Ministry of Justice also has an equal ability to watch over the autonomy

of the arbitration institutions, as well as to intervene if such autonomy is

infringed. Such ability arises from the general function of the Ministry of Justice

and not recognizing it would leave the legal provisions regarding the autonomy of

institutionalized arbitration deprived of sufficient guarantees.

Last, the courts of law competent to rule on the actions for annulment may

admit such actions for the reason related to the lack of autonomy of the arbitration

institution when such lack of autonomy was felt, in whatever form, in the cases

notified to them

26)

. The ground for admission is the breach of the public order

25)

According to art. 17 para. (2) o f the Rules of Arbitration Procedure of the Court o f

International Commercial Arbitration attached to the Chamber of Commerce and Industry of

Romania, published in “Monitorul Oficial al României”, Par t I, No. 197 of 29 March 2010, “… the

dispute shall be judged by an arbitration tribunal formed of 3 arbitrators, one appointed by each

party or ap pointed by the Nomination Authority, and the third one – the chairman – appointed in

all cases by the Nomination Authority” (our emphasis; A.S.). This last thesis is taken over by art.

37 (“Appointment of the Chairman”) of the Pr ocedure Rules of the respective Court, as follows:

“In all the cases, the chairman shall be appointed by the Nomination Authority”. Given that the

Nomination Authority is the president of the Chamber of Commerce and Industry of Romania, it

may be noticed that the right to appoint the chairman exclusively belongs to the Chamber of

Commerce and Industr y of Romania. Consequently, it may be called to be held liable jointly with

such in the case of an action for civil liability against them. Such a provision becomes however

illegal according to the provisions of the ne w Civil Procedure Code, as we shall present below (see

item 11). We emphasize that we use the terminology o f nomination authority (and not appointment

or designation) b ecause this is the ter minology used by the said rules of arbitration procedure. As

for us, our opinion is that, within these Rules, the barbarism “nomination” could have been

avoided, using instead the Romanian term “appointment” or “designatio n”.

26)

The revocatio n of the arbitrators forming the arbitration tribunal, for whatever reasons, by

another person that the management of the institutionalized arbitration, even if the revoking party

is the nomination authority, constitutes a s ufficient rea son to find the infringement of the

autonomy of the arbitration institution. From this perspective, the current p rovisions of the

Arbitration Procedure Rules of the Court of International Co mmercial Arbitration of Romania (art.

23) are in contradiction with the provisions of the new Civil Procedure Code as long as the y leave

for the College of the Court only the ca pacity to propose the revocation of the arbitrators to the

nomination authority, which is the president of the Chamber of Commerce of Romania. Even if the

mentioned tex t were interpreted in the sense that the nomination authority would be exclusively

15

because the independence of justice – without the distinction between state

jurisdiction or a private alternative thereof – represents a public order norm.

7. Returning to art. 610 para. 2 thesis (1), it does not deny the rule according

to which the arbitration procedure norms are available to the parties, but only

inserts the presumption that, in the case of institutionalized arbitration, the

litigants, opting for a certain arbitration institution, also opted for its standard

procedure rules. The presumption is juris tantum because the parties may however

derogate from the procedure rules of the seized arbitration institution. Such a

derogation is subject to the censure exercised by the management of the respective

institution which is called to verify two aspects: if the derogation is motivated by

the particulars of the case and if the derogation is effectively applicable.

Otherwise, it has no effect.

The mentioned provisions tend to solve a real problem that the institutionalized

arbitration faced. Thus, in some cases, the parties appointed a certain Court of

Arbitration as being competent to judge their disputes, but indicated the procedure

rules of another Court as being applicable, without observing that this way the

arbitration clause became impossible to enforce. Concretely, the Court of

International Commercial Arbitration of Romania may be requested to apply the

Procedure Rules of the Court of International Commercial Arbitration attached to

the International Chamber of Commerce in Paris (CCI). These rules provide, among

others, that, if the parties fail to appoint their arbitrators or the arbitrators do not

reach an agreement on the appointment of the chairman, the national committees of

CCI shall be called. But, it is doubtful that the said committees would be ready to

answer the requests of other courts of arbitration. A possible refusal would block

the procedure in the absence of an efficient nomination authority.

Also, the Court of Arbitration attached to CCI endorses

27)

the text of arbitral

awards before it may be notified to the parties. To the extent that an arbitration

tribunal operating under the aegis of institutionalized arbitration attached to the

Chamber of Commerce and Industry of Romania would be held to apply the rules

of the arbitration attached to CCI, the question arises if the prior verification of

the award should be operated by the Court in Paris or by the one in Bucharest, by

analogy. In the first case, the Court in Paris would probably refuse such mission,

competent to revoke the arbitrators which have not been appointed by the parties, the solution

remains still illegal. According to the new Civil Procedure Code, the role of the pr esident of the

Chamber may include at most the appointment in subsidiary of the arbitrators. A nomination

authority outside the Court is not and may not be a revocation authority also. When the president

of the Court is t he nomination authority, it may also fulfill the role of the revocation authority, but

under a different title. The nomination shall be made b y substitution of the party, while the

revocation is made in the exercise of the obligation of the management of the i nstitutionalized

arbitration to ensure the good performance of its activity.

27)

The endorsement is mandatory in respect of the fact that the draft award is forwarded for

debates by the Court without exception, but its standpoint has the legal efficiency of a recommendation.

16

at least for the reason that the verification of awards issued by the tribunals of

other courts is not provided by its procedure rules. In the latter case, the Court in

Bucharest may not be organized for the application of such procedure or the

respective procedure may contravene the public order of the forum. Again, the

arbitration clause would prove impossible to apply.

Since an inoperative arbitration convention is deprived of the effects intended

by the parties, the impossibility of an arbitration institution to apply the rules of

another arbitration institution restores the jurisdiction of the courts of law. In this

respect stands art. 546 para. (2) letter c of the new Civil Procedure Code which

provides that when a court of law is seized with a case, and one of the parties

invokes the existence of an arbitration convention, the respective court shall retain

the case for judgment, consequently, considering itself as having jurisdiction, to

the extent that the arbitration convention is null or inoperative. Consequently,

according to law, a convention may remain deprived of its effects even if it is

legally valid when, from the practical standpoint, it may not be operated.

But, according to the general principle of saving conventions, if the parties’ will

to submit their dispute to arbitration is beyond any doubt, but the arbitration

convention in the adopted form is inoperative, the question which arises is which is

the determinant element depending on which the competent jurisdiction is

established: the arbitration institution explicitly appointed or the arbitration institution

whose procedure rules are indicated as being applicable? The new Romanian Civil

Procedure Code clearly answers now this question, opting for the first variant.

Consequently, the arbitration clause or the arbitration shall be valid, but the

derogation from the procedure rules of the appointed arbitration court shall be null.

However, consistent with the idea that the parties should have a determinant role

in the organization of arbitration as a private jurisdiction and that, consequently, the

institutionalization of arbitration is only a measure in support of the parties, and not a

measure whose purpose is to restore the spirit characterized by the imperium specific

to the state jurisdiction, the Romanian lawmaker also permits derogations from the

rules of the seized arbitration institution leaving for its management the possibility to

apply other rules by analogy, i.e. adapting them to its manner of organization and

operation. Thus, an inoperative clause becomes operative.

For such an effort not to be the consequence of an abusive option, but also in

order to see the extent to which the parties did not intend to submit their case to

ad-hoc arbitration, the law also requires to verify if the derogation from the rules

of the seized arbitration institution is justified by the particulars of the case. If the

case does not justify the derogation, the ambiguity of the arbitration convention

shall be solved by a priority granted to the appointed court, meaning that the

designation of its competence entails the identification of the procedure to be

applied, and not the other way round, when the designation of the procedure rules

would indicate the competent court.

17

The new Civil Procedure Code establishes the competence for all these

verifications and decisions as belonging to the management of the arbitration

institution explicitly designated by the litigants. Without such provisions, the only

solution would have been to return to the state courts. However, according to art.

610 para. (2), although they may be seized with the inoperative nature of the

arbitration convention for the reasons described above, the court of law may not

longer retain the case, but it shall send it to the arbitration court. In its turn, before

starting the formation of the arbitration tribunal, it shall decide on the manner and

the extent to which the derogations from its procedure rules, as established by the

parties, may produce effects. The issues established by the arbitration institution

by its management are final. Not even the arbitration tribunal may change them.

In consideration of these conclusions, it may be said that the lawmaker

established an obligation of due care by the arbitration institution explicitly

seized, to adapt its standard procedure rules to the intentions of the litigants. Thus,

an institutionalized arbitration shall apply ad-hoc procedure rules. If the request of

the parties is not grounded or impossible to satisfy, the arbitration convention

remains valid, only the derogations from the standard procedure are null. The

option for the institutionalized arbitration prevails thus over the option regarding

the procedure rules. However, if the parties insist for the application of the rules

indicated by them, by their agreement, they may give up the institutionalized

arbitration and shall resort to ad-hoc arbitration stricto sensu.

The considerations above have to be also correlated with the text of art. 608

para. (2) providing that “in case of contradiction between the arbitration

convention and the regulation of the institutionalized arbitration to which it

refers, the arbitration convention shall prevail”. We consider that this text is a

principle in relation to the institutionalized arbitration, and its repetition in the

Civil Procedure Code, related to art. 610 para. (2) final thesis, is useless. Indeed,

art. 610 para. (2) does not deny the principle, but circumstantiates it putting it in

agreement with the general definition of arbitration as private jurisdiction

28)

. Thus,

for instance, if the arbitration convention indicated another nomination authority

than the one provided in the rules of the competent arbitration institution, the

parties’ convention shall prevail. But, if the authority chosen by the parties refuses

the mission, and the convention become inoperative as such, but at the same time

it has to be saved, return shall be made to the provisions of the procedure rules of

the seized arbitration. Such reasoning applies mutatis mutandis ion all the cases in

which the arbitration convention may not operate.

8. As we have previously stated, the main innovation made by the new Civil

Procedure Code in the matter of arbitration consists in the special regulation of the

institutionalized arbitration (art. 607-612). Art. 607 para. (1) provides that

28)

It is even more useless to repeat an identical text in art. 608 para. (3) and art. 610 para. (3).

18

“institutionalized arbitration is that form of arbitration jurisdiction which is

established and operates on a permanent basis attached to an organization or

domestic or international organization or as an independent public interest non-

governmental organization, according to law, based on its own regulation

applicable in the case of all disputes submitted for its settlement according to an

arbitration convention”.

Obviously, the institutionalized arbitration existed in Romania before the

normative act subject to our review. The most recent explicit legal ground was

found in the Law regarding the Chambers of Commerce in Romania

29)

which, by

art. 28 para. (2) letter e, included among the duties of the National Chamber the

duty to organize “the activity of settlement by arbitration of commercial and civil

disputes, domestic and international, under the conditions provided by the Civil

Procedure Code, by the special laws in this matter and by the international

conventions to which Romania is a party”. For the application of this principle

text, the same law also provided the organization of the Court of International

Commercial Arbitration as a “permanent arbitration institution” operating

“attached to the National Chamber”. The adoption of the Regulation for

organization and operation of this Court was established in the competence of the

Management College of the National Chamber, while the adoption of the

Arbitration Procedure Rules was established in the competence of the College of

the Court of Arbitration.

Other courts of arbitration were organized based on the general legislation

regarding foundations, associations and other non-governmental organizations or on

the regulations (schematic and lacunary) regarding the establishment of legal persons

able to create arbitration institutions. Each of them was established according to the

founder’s inspiration, pursuing, however, the international practice and the normative

framework of the Court of Arbitration attached to the National Chamber.

The new Civil Procedure Code offers a unitary and inclusive basis for the

institutionalization of arbitration in Romania. Concerning administrative norms,

we are dealing with provisions which are at the same time imperative and with

immediate application.

The new regulation allows, in a first hypothesis, any institution or organization,

either domestic or international, to organize arbitration institutions in Romania. The

absence of any specification regarding the legal status of the arbitration institutions

may lead to the idea that – unlike the provisions of Law No. 335/2007 of the

Chambers of Commerce in Romania, which provide that the arbitration operating

attached to the National Chamber is devoid of legal status – they may be legal

persons or not. However, in both cases, they remain to operate attached to the

organization which created them, always enjoying a status of autonomy.

29)

Law No. 335/2007 published in “Monitorul Oficial al României”, Part I, No. 836 of 6

December 2007.

19

We consider that automatically depriving of legal status some institutions

which have all the elements necessary for a legal status is not justified. The

autonomy of the institutionalized arbitration is best ensured by the recognition of

the legal status of the Courts of Arbitration. But, it is true that the legal status

triggers several expenses which would render arbitration more expensive. Also, in

order to ensure the objectivity of the management bodies of the Courts of

Arbitration and in order to increase their responsibility, certain outside

interventions are necessary (for instance, in respect of the appointment of the

management of the Courts of Arbitration). For this reason, independently from the

legal status, it was specified that a connection shall be kept between the

institutionalized arbitration and the institution which organized it, expressed by

the forma, otherwise ambiguous, “attached to”. At any rate, the Romanian

lawmaker wanted to immediately specify – art. 607 para. (2) – that “attached to”

does not mean “subordinated to” showing that the autonomy of the

institutionalized arbitration by reference to its creator is guaranteed

30)

.

The new Civil Procedure Code also inserts a second hypothesis which also

allows the organization of completely independent arbitration institutions as

“public interest non-governmental organizations”. The reference to the public

interest involves several comments. Shouldn’t the other arbitration institutions be

of public interest? Who establishes the existence or fulfillment of the public

interest and on which criteria or according to which procedures? May there be any

connection made between the concept of “public interest” used here by the Civil

Procedure Code and the concept of “public utility” used in the legislation

regarding foundations of this nature?

Admitting that the institutionalized arbitration may also be organized from a

non-institutionalized private initiative on condition that the product is a legal

person (this time, the need to acquire legal status may not longer be questioned,

because, without it, the institution cannot be identified and cannot express itself in

its relationships with third parties) of public interest, the lawmaker involves the

circumstance that also the arbitration institutionalized by and attached to other

legal persons has such a nature resulting from the fact that its originator serves the

public interest. Consequently, the result is that the recognition of the arbitration

institutions is made in consideration of the fact that they fulfill a public interest

activity. The existence of this interest is deducted from the nature of the entity

organizing the institutionalized arbitration and which, in its turn, fulfills a public

interest function or from the concrete objectives of the independent arbitration

institution. The notion of “autonomy” is included in the mechanism of fulfillment

of the public interest. Consequently, its infringement may lead to non-recognition

of the awards of the arbitration institution which, being no longer autonomous,

may no longer serve the public interest, but the interest of the entity controlling it

30)

We shall analyze in more detail the consequences of this provision below (ite m 9).

20

moreover, it results that only the public interest institutions or organizations may

organize permanent arbitration institutions attached to them.

We believe that the verification of the fulfillment of the criterion of “public

interest” is made in some cases ex ante, and in other cases ex post. In the case of the

arbitration institutions with legal status, the verification is made by the courts of law

competent with their registration. They shall have the obligation to analyze the

incorporation deeds in order to verify the extent to which they are oriented to

serving the public interest. Only afterwards and on condition of a positive

conclusion, the legal person may be legally established. In the case of all arbitration

institutions, the analysis is made ex post and, concretely, also by the courts of law,

by judging the actions for annulment. Since the obligation of serving the public

interest is a public order one, the result is that an action for annulment may be

admitted when it is found that the arbitration tribunal directly or indirectly served

another interest. And this because it is both the interest of the parties and the public

interest that the arbitration takes place free from any public or private interference

and is not directed by other principles than those regarding the interest of justice or

commerce, social stability and fluidity of civil circuit, of certitude (on which the

trust/credit is based) and celerity (on which profit is based).

In terms of their contents, the concepts of “public interest” and “public utility”

are equivalent. The procedure of recognition of “public utility” established by the law

in the general case of foundations is not however adequate in the case of organization

and operation of the arbitration institutions. We believe however that the respective

legislation may not be totally ignored. Until a regulation specific to arbitration is

adopted, the current legislation may be applied by analogy of the law. In this context,

for instance, the court of law called to verify the fulfillment of the legal conditions for

the organization of an arbitration institution with legal status may request the

endorsement of the Ministry of Justice or the fulfillment of other procedures provided

by the legislation regarding public utility foundations, to the extent that they are

compatible with the purpose and modality of operation of arbitration.

9. Article 607 para. (2) sets forth that “in governing and exercising the

jurisdictional business, institutional arbitration is independent of the institution

that set it up; it shall establish the requisite measures to guarantee autonomy”.

The text allows no other interpretation of the more ambiguous formula “attached

to”. The institution establishing institutional arbitration may not achieve it in order

to satisfy its own interests, but to promote wider interest, since it itself was created

for public interest. Otherwise, there would be no reason to explain the

establishment of a permanent arbitration institution that brings no direct profits to

its creator and, moreover, bears the responsibility of supporting duties. To take

one practical example, the Romanian Chamber of Commerce and Industry can not

make money out of arbitration fees, but may be compelled to support via its

services the business of the International Commercial Arbitration Court.

21

However, the National Chamber was established to help create a favorable

business environment for the convenience of its members and trade in general.

For this purpose, with the view to fulfill its mission, it set up besides it, so outside

its functional structures, a Court of Arbitration meant to conduct an independent

jurisdictional activity for the benefit of litigants and thereby trade in general. Only

the public service of the Chamber accounts for and explains the establishment of

an arbitration institution holding a different public office.

In order to be effective, institutional arbitration autonomy is not limited to the

fact that the arbitrators are outside the control of the one constituting the

arbitration institution. The entire activity of institutional arbitration, in all its

components and structures, among which the law makes no distinction, should be

independent.

Therefore, arbitration institutions (Courts of Arbitration) must appear outside

the organizational chart of the legal entity having them established, thus including

the exclusion of any relationship of subordination between them. Thence, the

technical staff available to the arbitration institution (Secretariat of the Court of

Arbitration), even if formally employed by the institution under which arbitration

operates (as it exclusively enjoys legal personality), must be selected by the

management of the institutional arbitration, solely responsible before it and may

be licensed by the aforesaid alone. Control of arbitral activity under auxiliary

forces’ monitoring forming the secretariat of the Court of Arbitration, by the

Chamber of Commerce making it available, as the current practice goes, is

incompatible with the autonomy required by law.

Likewise, functional departments servicing arbitration institutions (such as

financial and accounting departments, public relations departments, etc.), while

performing work dedicated to arbitration business can not receive directions from

the Chambers of Commerce management boards under the organizational chart

they operate. On these lines, the amounts of money collected from litigants as

arbitration fee do not belong to the Chamber of Commerce, but to the Court of

Arbitration attached to it and, therefore, they should be highlighted in separate

accounts or subaccounts, while the Chamber’s management board may not in the

least make free with it. Presumably, the said amounts appear within the

accounting books of the Chamber under which operates the institutional

arbitration as a deposit, being due to arbitrators constituting the arbitral tribunal

for the relevant case and to the arbitration institution under aegis of which was set

up that court, in order to cover administrative expenses relating to arbitration.

When a Chamber of Commerce deems necessary to subsidize the business of

the arbitration institution operating under it, the amount allotted should be

provided as fund available to the relevant Court of Arbitration management board,

and not as expenditure according to the options of the Chamber. The best example

is the one related to the possible compensation of members managing the

arbitration institution. Such management allowances may not be paid under a

22

direct relationship between each member of the Court of Arbitration management

board and the Chamber of Commerce. A relationship as such may lead to place

the arbitration management in a relationship of dependency and subordination to

the Chamber. It is true that, compared to the considerable volume of work the

management of institutional arbitration is required to carry out, accomplishing this

pro bono mission does not seem realistic. Financial compensation should be

facilitated, where appropriate, by making available to the Court of Arbitration a

budget at its disposal, and not under payment methods that might suggest a certain

dependence of the Court upon the Chamber.

The situation is even more obvious when it comes to appointing the

management of the Court of Arbitration (college) by the leadership of the Chamber

of Commerce “under which” it operates. To that effect, ensuring autonomy is

achieved only by arbitrators’ irremovability in the constitution of the arbitration

institution’s management over a clearly established validity period of its mandate

31)

.

Finally, the new Code of Civil Procedure provides in Art. 611 that “in the

event of arbitration conducted by a permanent institution, the fees for conducting

the arbitration, arbitrators’ fees, as well as other arbitration costs shall be

determined and paid according to the rules of that institution”. This stands for a

different approach from the one under Law no. 335/2007 on the Chambers of

Commerce in Romania, where Art. 30 para. (1) provides that “the rules on

arbitration and arbitrators’ fees shall be approved by the Governing Board of the

National Chamber, at the suggestion of the College of International Commercial

Arbitration Court”. It is explicit that the new legislation makes a step forward on

the line of institutional arbitration’s autonomy.

A particular difficulty in the interpretation and correlation of these texts may

result from the way the two aforementioned laws use the term “regulation”. Law

335/2007 makes a clear distinction between the Regulation on organization and

operation of the Court of International Commercial Arbitration which is adopted

by the Chamber of Commerce Board (Art. 29 para. 3) and contains rules setting

out the constitution of the Court, its organizational structure and its relationships

with the Chamber, the Rules of Procedure of the Court of International

Commercial Arbitration, which are nominated by the Chairman of the Court and

are adopted by its Board (Art. 29 para. 5), constituting the “Code of Arbitration

Procedure” specific to the relevant Court and the Rules on arbitration fees, which

are submitted by the Court’s Board and are approved by the Chamber’s Board

(Art. 30 para. 1). Therefore, the Regulation falls entirely under the jurisdiction of

the Chamber of Commerce under which operates the Court of Arbitration and

does not refer to the arbitration procedure, holding an administrative function; the

31)

For the sa me reason, even if the list of arbitrators the institutional arbitration may produce

acts solely as recommendation, we argue that the figures on the relevant list can not be replaced

until the expiration of a reasonable length of time set for its term of validit y.

23

Rules of procedure fall exclusively under the jurisdiction of the Court of

Arbitration; the Rules on arbitration fees (including arbitrators’ fees) are the joint

responsibility of the Court and the Chamber, the former enjoying the exclusive

right to propose and the latter the exclusive right to rule.

The new Code of Civil Procedure, after providing in Art. 607 para. (2) that

“in governing and exercising the jurisdictional business, institutional arbitration

is independent of the institution that set it up”, in other articles it uses both the

term of “regulation” and the phrase “rules of procedure” as interchangeable. Thus,

Art. 608 para. (2) sets forth that “in case of contrariety between arbitration

agreement and institutional arbitration regulation it refers to (s. n.; A.S.), the

arbitration agreement shall prevail”, and in Art. 608 para. (3), as in Art. 610 para.

(3) it is provided that “unless the parties otherwise agree, the rules of procedure

of institutional arbitration shall be applicable (s. n.; A.S.) in force at the time of

its referral”, while Art. 609 para. (2) states that “the appointing authority is the

Chairman of the institutional arbitration, unless its rules of procedure (s. n.; A.S.)

or the parties themselves do not provide otherwise”, and in Art. 610 para. (2) it is

stated that “by appointing a specific institutional arbitration ... the parties

automatically choose so that its rules of procedure shall be applicable (s. n.,

A.S.). Art. 610 para (1) provides that “the rules of procedure of institutional

arbitration (s. n.; A.S.) shall be enacted by its management board in accordance

with its operating rules set within the incorporation act”, while the aforesaid Art.

611 deals with “the regulation of that institution” (i.e. the institutional arbitration)

with reference to the sedes materiae of arbitration fees. To summarize, we should

bear in mind that, under the new Code of Civil Procedure: i. regulation of the

jurisdictional business (Art. 607) and, thus, adopting rules of procedure of

institutional arbitration is its sovereign right (Art. 610); ii. the sum of rules of

arbitration procedure stands for the regulation of institutional arbitration (Art. 608

and 610); iii. arbitration fees should also be included in the regulation of the

institutional arbitration (recommended in our opinion, as an appendix to it) to

which the parties refer under the arbitration agreement (Art. 611); iv. the rules of

procedure, i.e. the regulation of the arbitration procedure (jurisdiction) shall be

adopted by the institutional arbitration board in accordance with the operating

rules set within its incorporation act. Therefore, it goes out clearly that, what Law

no. 335/2007 calls “regulation”, the new Code of Civil Procedure calls

“incorporation act” (document that should preexist to the arbitration institution,

and, therefore, can not be attributed but to its creators/organizers); what Law no.

335/2007 calls „rules of procedure”, the new Code of Civil Procedure equally

calls “regulation” or “rules of procedure” (in fact, Law no. 335/2007 deals with

“regulation on organization and operation” of arbitration, while the Code of

Procedure deals with the “regulation of the institutional arbitration” the

arbitration agreement refers to, while the latter can not refer but to rules of

arbitration procedure, and not to provisions governing the relationship between

24

the institution of arbitration and the one establishing it); both Law no. 335/2007

and the Code of Civil Procedure call provisions on arbitration fees as rules. The

conclusion is that, under the new Code of Civil Procedure, institutional arbitration

management powers are greatly increased, giving a more consistent expression of

its autonomy. Thus, the establishment of arbitration fees, which also involves

defining the relationship between arbitration fees and administrative expenses, as

well as methods of calculating charges fall within the absolute power of those

who practice arbitration, standing beyond the control of the ones responsible for

organizing the institution.

The question is which are the legal provisions that shall prevail in terms of

differences between Law 335/2007 and the new Code of Civil Procedure. Once

we notice that all the legal rules under consideration are equal in nature, i.e. they

are not related to the arbitration procedure, but to the institutional (administrative)

order of arbitration business, such being immediately applicable, we could

mention that one possible response would be that Law no. 335/2007, as a special

law, has the power of waiving the general law which is the new Code of Civil

Procedure. Provisions of Art. 2 (2) of the new Code of Civil Procedure seem to

lead to the same effect, stating that the “provisions of this Code shall apply to

matters governed by other laws, to the extent that these do not contain contrary

provisions”. It is no less true that the new Code of Civil Procedure introduces for

the first time in Romanian law a set of rules aiming to regulate institutional

arbitration on uniform criteria. Out of this manifest intent, and of the time

sequence of the two enactments, we would conclude that all institutional

arbitration rules adopted under Law no. 335/2007, contrary to the new Code of

Civil Procedure should be aligned with its provisions. This, all the more so as, in

this particular case, we do not deal with procedural rules, but with the rules of

administrative law inserted into civil procedural law, and especially as the rules in

question come to clarify the meaning of the principle of “arbitral jurisdiction

autonomy”, which, like the principle of “independence of the judiciary”, belongs

to public policy. To these arguments it can be also added the one of maximum

relevance according to which even Art. 28 para. 2 of Law no. 335/2007 allows the

Romanian Chamber of Commerce to run arbitration businesses exclusively within

the scope of the Code of Civil Procedure. Therefore, since the special law in itself

shall refer to the law, when it comes to institutional arbitration, it turns out that

amendment of the general law requires the harmonization of secondary legislative

acts committed under the special law witho the new rules of common law.

However, even the current legislation on the Court of International

Commercial Arbitration attached to the Romanian Chamber of Commerce and

Industry of Romania provides, beyond the fact that approval by the Romanian

Chamber of Commerce and Industry of arbitration fees may only be achieved

based on a proposal submitted by the Court of Arbitration Board, that “arbitration

fees are intended for covering expenses related to the business of dispute

25

resolution, payment of arbitrators’ fees and relevant documentation, secretarial

expenses and other expenses requisite for the operation of the Court of

International Commercial Arbitration” (Art. 30 para. 2 of Law no. 335/2007).

Therefore, the budgetary and financial separation between the Chamber and the

Court has already been stated as binding.

10. Art. 609 para. (1) of the new Code of Civil Procedure provides that the

lists of arbitrators that arbitration institutions have the discretion to adopt are

open, being optional. This means that litigants have the right to appoint, as well,

other arbitrators than the ones written down in the said lists.

Such facility does not rule out, however, the arbitral tribunal’s ability to

establish procedures for verification and acceptance of assignments, so they are

not abusive or inappropriate. Indeed, it is needless to say that a person whose

interests are in conflict with the interests governing the mission entrusted is not

compatible with that of an arbitrator in a given case. A similar conflict of interests

could also stand as grounds for a subsequent challenge. But the challenge

procedure may delay completion of the case, so that a prior verification of the

state of conflict of interest by the permanent institutions of the relevant court of

arbitration may be deemed as desirable.

If, in the event of a conflict of interest, there is, however, the challenge

remedy, in case of mismatch between the specialization of the person appointed as

arbitrator and professional skills required by the case assigned to arbitration,

things are far more complicated. Inclusively in relation to a similar situation, there

is the possibility of a professional liability action, but evidence and repair of

damage caused by the professional incompetence of an adjudicator is difficult to

achieve. A preventive solution is therefore preferable. This so much the more

when some fancy designations hide abuse of procedural law, being made with the

intent to hinder the progress of the case.

Such considerations allow institutional arbitration to establish a special

procedure on the establishment of arbitral tribunal, procedure that, allowing litigants

to take initiative in appointing arbitrators, grants to its permanent courts the right of

censorship. Obviously, this right is also based upon agreement of parties expressed

by accepting institutional arbitration rules of procedure along with the choice made

by the arbitration agreement. On the other hand, its exercise must not be abusive.

The decision not to confirm an arbitrator appointed by the parties must be justified

and, if necessary, it may be sanctioned by a civil liability action. To better ensure

the rights of litigants, by means of arbitrations rules of procedure, it is useful to

provide that denial of an appointment allows the interested party to submit another.

Only if such an approach would unduly delay the proceedings, it may be appealed

to nomination ex officio by the appointment authority.

The rule provided by Art. 609 para. (4) has a multiple nature. First, we deal

with an alternative provision of an administrative nature. It is about the provision

26

according to which “institutional arbitration may (s. n.; A.S.) draft optional lists

of persons who may be arbitrators or umpires”. In relation to the organization of

institutional arbitration, this rule is imperative. It leaves up to the arbitral

institution to prepare a detailed list of names of possible arbitrators or not. But the

alternative is limited that much. This means that an imperative list (a closed list) is

not permitted by law.

The solution ranges on the line of current practices in the European Union.

The existence of lists may stand for assistance given to litigants, which can thus

lead in relation to figures who may arbitrate their disputes. At the same time,

compiling such lists, the arbitration institution concerned shall ensure, at least

ethically, the competence and probity of names entered. Prohibition of

appointments outside the list would be contrary to the private nature of arbitral

jurisdiction and would reduce the degree of confidence of parties in the arbitral

tribunal. Or, trust is not just an element of attraction to arbitration, but rather a

stimulus for the dynamics of business environment and a basis for voluntary

execution of arbitral awards. The practice of closed lists is characteristic of

totalitarian regimes and lines of thought. Return of the Romanian Court of

International Commercial Arbitration to a similar practice – banned under the new

Code of Civil Procedure – is therefore regrettable.

Secondly, Art. 609 para. 1 includes a rule of jurisdiction which, by that very

nature, is also mandatory. We bear in mind the provision according to which the list

of arbitrators shall be drawn up by the arbitration institution (the Court of

Arbitration), and not by the organizing institution under which it operates (the

Chamber of Commerce). In this regard, the new Code of Civil Procedure puts out of

court the relevant provisions of the Regulation on Organization and Operation of

the International Commercial Arbitration Court attached to the Romanian Chamber

of Commerce and Industry, which provide that the list of arbitrators is drawn up by

the Romanian Chamber of Commerce and Industry Romania as closed list

32)

.

11. Regarding para. (2) of Art. 609, it sets a number of general procedural

rules, thus suppletive, but also with regard to jurisdiction, thus compelling. It

covers regulation of cases where the parties fail to exercise their procedural law of

appointing arbitrators (in our interpretation, including when the appointment is

32)

In line with Regulation on the Organization and Operation of the Romanian International

Commercial Arbitration Cou rt, appointing as arbitrator a person not entered on the List of

Arbitrators lea ds to qualifying arbitration as ad hoc arbitration, even if the p arties have asserte d

their option, within the arbitration agreement, for institutional arbitration. This approach, more

than questionable, is specifically settled down to Art. 6 in the aforementioned Regulation: “Should

the party nominate as arbitrato r a person not entered o n the List of in ternal and international

arbitrators, list th at was submitted to him by the Secretariat of the Court, the arb itration shall be

subject to ad hoc arbitration rules, which is conducted in accordance with the provisions set forth

in Part I of the Rules on arbitration procedure”. The provision cited is contrary, therefore, to the

new Criminal Procedure Code and shall be deleted.

27

unreliable – the case of people obviously incompetent – or unacceptable – the case

of people in conflict of interest) and cases in which the arbitrators fail to agree on

the umpires. In such circumstances, the nominating authority is the one indicated

by the parties or the one prescribed by rules of procedure of the arbitration

institution referred to. Should they keep silent, jurisdiction falls under the heading

of the Chairman of the arbitration institution.

The first consequence of the law’s wording cited is to solve a controversy that

gathered way on several occasions – characterizing, inter alia, the Romanian

arbitration. Thus, art. 609 para. (2) clarifies that the rules on constitution of the

arbitral tribunal are rules of procedure, rather than rules of organization of the

institutional arbitration. As such, they are established via rules of procedure for

whose adoption the arbitration institution has jurisdiction (the Court of Arbitration),

and not via its rules of organization under the jurisdiction of the arbitration

institution under which arbitration operates (the Chamber of Commerce etc.)

33)

. In

light of such disposition, provision of the Regulation of Organization and Operation

of the Court of International Commercial Arbitration attached to the Romanian

Chamber of Commerce and Industry, according to which the appointing authority

falls upon the Chairman of the Romanian Chamber of Commerce and Industry

(who, as a matter of fact, also owns the monopoly of appointing umpires) are illegal

twice: firstly, because the arbitration procedural rules are not adopted by the Court

of Arbitration, but by the Chamber of Commerce under which the arbitration

operates, and, secondly, as conferring exclusive rights of appointing umpires to the

Chairman of the Chamber of Commerce and Industry it violates the arbitrators’

right to do so in the first instance.

According to the Code of Civil Procedure, it is indubitable that the

appointment of arbitrators falls mainly on the parties and, alternatively, to persons

designated by them or by the rules of the arbitration institution referred to and the

relevant prima facie. Regarding the appointment of umpires, the main competence

comes to arbitrators (mainly appointed by the parties themselves and therefore,

failing to represent them, invested, however, with their confidence), and the

33)

We can not speak in this case of a novelt y brought about under the new Code o f Civil

Procedure, but only about settlement on the way of positive law of a doctrine co ntroversy with

effects in secondary law regulation. The fact that the fo rmation of the arbitral tribunal is a

procedural issue and not an organizational o ne, it was defended until the adoption of the new Code

of Civil Procedure, including by the author o f the st udy hereby. But the opinion was not followed

by some institutions orga nizing the institutional arbitration (e.g., the Romanian Chamber of

Commerce and Industry) that have reserved the right to regulate the incorporating procedure of the

arbitral tribunal and to intervene specifically in the implementation of the said procedure,

considering it as part of the ad ministrative organization of arbitration. Failing t hus to enact a ne w

regulation on the issue, but clearing up its nature and, conseq uently, jurisdictio n over legislation,

the new Code of Civil Procedure not only requires amendment of contrary rules in the seconda ry

law with ex nunc effects, but also flags them as illegal a b initio urging, therefore, their annulment,

i.e., an amendment with ex tunc effects.

28

subsidiary jurisdiction falls upon persons authorized by them or by the rules of

procedure relevant for the case. A final subsidiary is explicitly established under

the Code of Civil Procedure: under the silence of the parties or the rules of

arbitration procedure, the appointing (designation) authority is conferred upon the

Chairman of the relevant arbitration institution.

The question is what happens when the appointing authority chosen by the

parties by means of the arbitration agreement and the one specified by the relevant

Rules of arbitration procedure are different? The answer is explicitly given in Art.

608 para. (2) of the new Code of Civil Procedure within the meaning of the

prevalence of the arbitration agreement. We argue that this solution, fully compatible

with the nature of private jurisdiction of arbitration, is also reinforced by the literal

interpretation of Art. 609 para. (2) listing alternative solutions in their reverse order,

i.e., first it mentions the Chairman of the institutional arbitration, who is the last

entitled to intervene in the proceedings of incorporation of the arbitral tribunal,

proceeding thereupon with the rules of procedure of institutional arbitration and

ending with the parties’ option, obviously expressed in the arbitration agreement. The

logical reasoning goes the same direction. Since, within the boundaries of unabusive

exercise of law, litigants are the ones having primary jurisdiction in appointing

arbitrators, enjoying, by law, the power of investing them, with the same gesture, with

derived jurisdiction, but also absolute to appoint the umpire, a fortiori they can

delegate such authority to a third party before anyone else may be able to do so.

The procedure of establishing the arbitral tribunal described above is, as I said

before, a correct expression of the essential logic of circumscribing the arbitration

institution jurisdiction as private jurisdiction. Default of an appointing authority to

unblock procedure where indolence or renitence of parties fails to allow the

constitution of the arbitral tribunal is one of the main disadvantages of ad hoc

arbitration. Institutional arbitration, involving the establishment of permanent

forums that may retrieve anytime the nomination authority function, prevents such

a deficiency. This does not mean that the parties’ right in organizing jurisdiction

according to their specific interests can be limited when it comes to appeal to

institutional arbitration. The institutionalization of arbitration is intended to

enhance the effectiveness of private jurisdictions, and not to establish state control

(administrative control) over the relevant jurisdiction, for the purposes of limiting

the parties’ ability to subserve the organization of an arbitration tribunal to enjoy

their confidence, to guarantee objectivity and therefore to ensure celerity of

proceedings, including under voluntary execution of the arbitration award, seen as

the ending of a fair trial. That is why we believe that the mechanism described is

not arbitrary, but is imposed by the essence of arbitration, coming, per se, under

its public policy. Therefore, procedures that limit the right of parties to appoint

arbitrators directly (save the procedure of fighting the consequences of procedural

law abuse or the procedure on challenge) and umpires indirectly (as things stand

with current rules applied by the Court of International Commercial Arbitration

29

attached to the Romanian Chamber of Commerce and Industry) are likely to be

sanctioned by way of admission of actions for annulment.

As a final remark, it may be avouched that, by means of the rules of procedure,

institutional arbitration may leave the subsidiary appointing authority function to

someone other than its Chairman. A similar solution can be imposed by the very

logic of organizing a specific permanent arbitration institution. Thus, the Court of

Arbitration attached to the ICC (Paris) serves as subsidiary appointing authority the

ICC national committees. This allows the Court to subsequently intervene with

greater objectivity in the preventive control of accuracy in the constitution of the

tribunal or in the drafting of the arbitration award.

On the other hand, the appointing authority set forth under institutional

arbitration rules of procedure must also accept fulfillment of a mission as such; this

does not necessarily happen if the relevant authority is not part of the institutional

arbitration system or is in default of a special agreement with it. Likewise, the

appointing authority must be free from the suspicion of lack of objectivity, which is

not the case with the Chambers of Commerce, whose members can often be even

litigant. In light of these findings, the new Code of Civil Procedure, by assigning

the authority to appoint, even in the most distant subsidiary, to the Chairman of the

permanent arbitration institution, shall ensure that such a mission will be accepted

and exercised impartially, the Chairman being right the one called to ensure the

smooth functioning of the institution. We believe that if the subsidiary appointing

authority established by the arbitration agreement or applicable rules of procedure is

any person outside the jurisdiction of the relevant arbitration institution and he/she

refuses, explicitly or implicitly, to fulfill the mission, under applicability of the new

Romanian Code of Civil Procedure, the solution would be appeal to designation by

the Chairman of institutional arbitration. The same is also required when a similar

appointing authority appears to be in conflict of interest, conflict that may be found

by the institutional arbitration management ex oficio or at the parties’ request. Thus,

the purpose intended by the parties is achieved by applying an alternative

procedural rule set forth in positive law that, even if set aside by them by means of

delivering another option, appears to be the only one operational.

Given this background, there comes to light the opportunity idea that the

legislator’s preference for the Chairman of the institutional arbitration – as subsidiary

appointing authority, to be taken over by the Rules of Arbitration Procedure of the

relevant arbitration. If this fails to occur, those rules should provide return to the

Chairman of the institutional arbitration or, where appropriate, to its comprehensive

management when the appointing authority fails to fulfill its obligations, carries it out

improperly or is in conflict of interests. Finally, we consider that such solutions

should be enshrined in lege ferenda primary positive law.

12. Article 609 para. (3) of the new Code of Civil Procedure, under a broad

interpretation, seems to exclude from the quality of appointing authority those

30

professional associations or organizations that are in dispute with third parties. The

legislator does not distinguish between a main or subsidiary appointing authority.

The wording may be understood in the sense that, including the case of subsidiary

appointing authority, the conflict of interest must be avoided

34)

. Coming under the

guarantee of a fair (correct) trial, this rule also belongs to public policy.

Its application involves fulfillment of two cumulative conditions. The first

relates to the fact that the association or organization in question has been

designated as subsidiary appointing authority and the second that it is a litigant in

the very process in which it acts as appointing authority. Otherwise, on principle,

one can not refuse a litigant, albeit one association or organization mentioned in

Art. 609 para. (3), to appoint its arbitrator in the arbitration process in which they

participate. At the same time, there would be no more case if the relevant

association or organization would not act as subsidiary appointing authority. We

believe, however, that if this is the legislator’s assumption, the conflict of interest

should be considered and resolved in the same way, regardless of whether the

relevant party is an associative organization, an organization formed to defend the

interests of a professional group or any other subject of law. Since the Code of Civil

Procedure does not prohibit such a solution able to cover the problem as a whole

(assumption in Art. 609 para. 3 can be construed only as an extreme situation that

the legislator sought to regulate directly, without prohibiting institutional arbitration

to settle other cases in the same spirit), it can be applied until a future improvement

in legislation, either in relation to the interpretation of the law by analogy, or under

the rules of arbitration procedure of each institutional arbitration.

Despite its clerical ambiguities, the wording of the new Code of Civil

Procedure may solve the real problem created by the overlapping and conflict

occurred between the quality of litigant in the arbitration case and that of

appointing authority nominated under the rules of procedure of institutional

arbitration. Those rules may not apply when the appointing authority follows the

interests of either party

35)

. The question remains, however, who will then play the

34)

Article 554 of the new Code of Civil Procedure defines in detail the incompatibility of

arbitrators, but the law does not e xplicitly provide anything about the possible cases of

incompatibility that the subsid iary nomination authority might fall under. Art. 60 9 para. (3) can be

taken as basis to that effect, setting forth that the liberty of the person entitled to appoint arbitrators

may be limited when it can lead to the constitution of an arbitral tribunal that, although it poses no

problems of incompatibility i n the strict sense of law, inflames distrust of parties in the objectivity

under which the procedure develops or renders vulnerable the neutrality of arbitrator s in

consequence of dependency relations, be it either distant, mediated and sophisticated between

them, the one who appointed them and the parties.

35)

It is, for instance, t he case of the arbitrator (umpire) designated b y the subsidiary

appointing a uthority (e.g., the Chairman of the Romanian Chamber of Commerce and Industry)

which has no connections with litigants likely to bring him under Art. 55 4 of the new Code of

Civil Procedure, but hangs instead upon t he interests of the relevant authority, which is in turn

connected to the parties’ interests.

31

role of appointing authority? In the absence of an explicit response under the law,

we consider that the impossibility of applying one of the overriding subsidiary

solutions leads to the application of the last alternative, namely the Chairman of

the permanent arbitration institution’s active role in the matter. If this one is also

incompatible on account of a conflict of interest, the appointing authority shall be

exercised by one of his deputies by rights.

However, a strict interpretation of purport in Art. 609 para. 3 could also lead

to another interpretation. Thus, the relevant wording sets forth that organizations

and associations listed should only be unable to appoint “arbitrators out of their

members”. This suggests the hypothesis that we have to do with litigants not

acting as subsidiary appointing authority, but would not benefit from a legal entity

distinct from that of people by whose association they have been created. Since

only individuals can be designated as arbitrators, it is understood that members of

relevant associations and organizations the law alludes to are individuals. The

argument for such a prohibition would be that, for such organizations and

associations, the connection of interest between them and their individual

members is so large and intimate, that the appointment of the latter as arbitrators

would be tantamount to placing the litigant party itself in the position of arbitrator.

Or, the arbitrator is appointed by the party, but it is not the party’s representative

and even less, the party itself. We believe that, a fortiori, the solution is the same

when a similar party acts as appointing authority, as well.

If the association or organization in question shall appoint an arbitrator in

breach of Art. 609 para. (3) we argue that, bearing in mind the rules of arbitration

procedure specific to each institutional arbitration, the arbitration institution

referred to may refuse the appointment and shall request another one. If there is no

another option asserted in due time, the appointing authority shall be appealed to.

However, since appointment under breach of law may be considered, especially

when litigants are professionals accustomed to arbitration, as procedural abuse or

testimony of bad faith, appeal to subsidiary appointing authority may be

performed immediately. This is especially applicable when performing otherwise

equals to unnecessarily spin out the case’s time. What would happen, though,

should a party be appointed under the arbitration agreement, so under the

agreement of all parties, in its capacity as subsidiary appointing authority? Article

549 in the Code of Civil Procedure sets forth that “the arbitration agreement

clause stipulating the right of a Party to appoint arbitrators for the other Party or

to have more arbitrators than the other Party is null and void”. This article

touches, however, ad hoc arbitration, and it can be argued that institutional

arbitration rules of procedure may deviate from the rule which it lays down. In

such case, it is clear that prima facie we would have to do with a conflict of

interest. However, the interpretation of the Code of Civil Procedure is conducive

to the fact that right of litigants to nominate arbitrators is available. In carrying it

out, they may draw upon a third party named as appointing authority. A similar

32

ability has no restrictions

36)

, at least under Art. 609 para. 2. Moreover, Art. 549

refers to the waiver of the right of appointing the arbitrators directly by the parties

(as main appointing authority) and this on the strength of their committed

agreement under the arbitration agreement and not to the relegation of the

subsidiary appointing authority by one Party to another, under a unilateral deed.

Consequently, nothing seems to preclude that either party transfers alternatively

the exercise of its procedural right to another litigant

37)

.

If this Party fits the cases covered under Art. 609 para. 3, it shall not be able to

appoint arbitrators from among its members, even if it is about an arbitrator appointed

for and on behalf of the other Party. The same goes if the Party for which it is

performed the arbitrator’s appointment is subject to Art. 609 para 3. In the first case,

it is about protecting the private interest of litigants consisting in the appointment of

arbitrators whose probity is reliable. In the second and third case, we are dealing with

the public interest of ensuring fairness (objectivity and neutrality) of the arbitration

process. Consequently, what the Party can not execute personally, the appointing

authority replacing it may not do it either; especially since it was appointed by the

Party. Otherwise, there would be the case of a fraud in law.

13. An important innovation brought under the new Code of Civil Procedure

deals with regulation of validity conditions of the arbitration agreement. The

36)

In p ractice, when they appeal to a third party as appointing authority, litigants do it under

the arbitration agreement, ipso facto. The wording of Art. 6 09 (2) “if ... the parties themselves do

not p rovide otherwise”, even if the plural is used, does not imply t he obligation of appointing a

nomination authority to be consens ual. Thus, each Party may designate another appointing

authority, and this can b e done until the expiry of the deadline the relevant Party was entitled to

appointing the arbitrator personally. Conseq uently, we would deal not even with an agreement that

would be voidable (should Art. 549 be applied), but with a unilateral deed aimed at the manner of

practically exercising the right to appoint arbitrators. Only as umpires are concerned, designation

of the appointing authority by the Parties is binding consensual, as it replaces all the arbitrators and

not just the arbitrator responsible for the procedure’s blocking. Including this case, consensus can

occur until the deadline the arbitrators were to nominate the umpire.

37)

This all the more so argument of Art. 549 of the Code of Civil Pro cedure is hardly

identifiable under the plan of law’s fundamental pr inciples. At first glance, t he provisio ns of this

article tend to ensure balance and objectivity of the proce dure. Work would still be meaningful if

arbitrators would act as parties’ representatives. Though, they do not act as representatives, but as

neutral persons whose probity is trusted by the parties. The right of each party to appoint an equal

number of arbitrators is just an additional assurance whose absence may preclude under no way

the arbitral tribunal to be objective, even if one or more part ies failed to nominate arbitrators. What

law prohibits, indeed , is a party waiving its original right to ap point arbitrators. As long as it may

appoint arbitrators mainly, it is irrelevant who it appoints as subsidiary appointing authority.

Especially in commercial matters, where parties often pursue only to quickly find a solution to

allow quiet resumption of legal relationships, nothing stands against a part y to have full confidence

in the other P arty and to confer it the role of subsidiary appointing authorit y, as nothing precludes

that, in fact, all arbitrators to be appointed under the parties’ agreement (agreement whose

implementation is achieved through nominations made separately b y each Party).

33

relevant purport is Art. 540 para. 1 in the Code of Civil Procedure. It covers

arbitration in general and not only institutional arbitration.

The old Code of Civil Procedure (still in force) required, simply and solely,

the written form of the ad validitatem arbitration agreement (Art. 343 para. 1).

The practice of arbitration has given this purport a broad interpretation and found

that any procedural acts done in writing by the parties (e.g. arbitration proceedings

brought by the plaintiff followed by the defendant’s response whereby the latter

fails to invoke the plea of arbitration’s lack of jurisdiction), out of their

corroboration ensuing sufficiently clear their intention to refer their dispute to

arbitration, are sufficient to be approached as a valid arbitration agreement

38)

. This

solution was criticized by some of the doctrine which held that, under this broad

interpretation, the written form is absolutely irrelevant

39)

.

The new Code of Civil Procedure preserves integrally the old wording, but adds up

a second phrase that establishes in positive law the aforementioned case law and

uniform law trends. Therefore, “the condition of written form is considered fulfilled

when appeal to arbitration has been agreed by exchange of correspondence,

irrespective of its form, or by exchange of procedural documents, or when its existence

was alleged in writing by one of the Parties and was not challenged by the other”.

Although the drafting technique is objectionable – a more nuanced provision would

have been preferable, and not such a combination of the original radical provision and

38)

In this regard , see the arbitration award no. 57 / April 1

st

, 2009, as cited in V. Babiuc, O.

Capatana (coordinators), JurisprudenŃă Comercială Arbitrală (Commercial Arbitration Case Law)

1953-2000, SC Edimpress Camro SRL Publishing House, Bucharest, 2002, p. 3. This

jurisprudential solution incorporates the concept of the European Convention of International

Commercial Arbitration, Geneva, 1961. According to Art. 1 section 2 letter a of this international

document, the term “arbitration agreement” shall mean either an arbitral clause set forth in a

contract, or a compromise, the agreement or the compromise being signed by the parties, or

contained in an exchange of letters, telegrams, or in a communication by teleprinter and, in

relations between States whose la ws do not require that an arbitration agreement be made in

writing, any arbitration agreement concluded in the form authorized by these la ws. Ro mania ha s

ratified this international instrument b y Decree no. 281/1963, published in “Official Gazette” no.

12/June 15

th

, 1963.

39)

In this context we mention an innovation of the ne w Code of C ivil Procedure, namely Art.

541 para. (2), wording which reads: “the existence of the arbitration agreement shall be presumed

if the applicant files a request for arbitration, and the defen dant does not take any objections on

the first term he has been legally summoned”.

The reproduced text takes over the wording – prev iously regulated – set forth in Art. 14 of the

Rules of Arbitration Procedure of the International Co mmercial Arbitration Court attached to the

Romanian Chamber of Commerce and Industry (“Official Gazette of Romania”, Part I, no. 197 of

March 29

th

, 2009), wording which reads “(1) Arbitration agreement can also result from the

introduction by the plaintiff of request for arbitration and the defendant’s acceptance of this

request to be settled by the Court of Arbitration; (2) Defendant’s acceptance may be implied, but

unequivocal”. Such regulations were consistently provided in the Rules o f Arbitration P rocedure

of t he International Commercial Arbitration Court attached to t he Romanian Chamber of

Commerce and Industry (for example, Art. 13 of the Rules in force since April 18

th

, 2008 etc.).

34

another one subsequent that virtually empties of content the first one – the legislator’s

intention is clear. It ranges on line of some principles and realities that have consistently

circumscribed theory and practice of arbitration. On the one hand, we bear in mind the

principle of relief of legal deeds under which should be carried out poor arbitration

agreements if it can be found under reasonable basis that the parties wanted to eliminate

the jurisdiction of courts and resort to arbitration, to the extent they are operational

40)

.

Arbitral tribunals will thus be bound to show flexibility and imagination to complete

gaps in the covenant between the parties relating to arbitration proceedings when their

willingness to appeal to such procedure is beyond doubt.

On the other hand, forasmuch as, ordinarily, arbitration is referred to by

people organized institutionally linking constantly legal relationships of a certain

kind and practice recourse to arbitration to resolve disputes arising from those

relations, the written form of arbitration agreement is not warranted to be required

with maximum rigor. A similar form is normally designed to draw non-

professionals attention to the seriousness of their gesture and related risks. For

professionals, such a preventive and protective measure is superfluous.

In light of the foregoing, the provision set forth in para. (2) of the same

Article 540 of the new Code of Civil Procedure, under which “if the arbitration

agreement relates to a dispute on the transfer of ownership and / or the

establishment of another real right on immovable property, the agreement must be

concluded under authenticated notarial form, under penalty of absolute nullity, is

at least bizarre. It can not be explained but by virtue of a logical inconsistency

whose correction is urgently required de lege ferenda. Unparalleled in any other

legislation, the purport displays a civilian tendency in a world in which the

arbitration is marketed and discloses corporate interests in a context where

arbitration can not ignore the effects of free competition which is bound to face.

14. It should be also reported the legislative innovation introduced under Art.

604 of the new Code of Civil Procedure, in relation to the action for annulment of

the arbitration award. Therefore, according to Art. 599 para. 1, “the arbitration

award may be made void only by action for annulment” and according to Art. 601,

“jurisdiction to hear the action for annulment falls upon the Appellate Court in the

district where the arbitration took place”. Article 604 para. (1) provides that the

action for annulment shall be judged by the legal panel to hear the appeal, while

Art. 604 para. 4 sets forth that “resolutions of the Appellate Court … are final”.

40)

Institutional arbitration is going so far to save the arbitration agreement, that when it states

undoubtedly the parties’ option for a particular permanent arbitral institution, but the said

institution refuses to arbitrate the dispute before it, rendering thus the agreement inoperative, the

jurisdiction falls not on courts, but on ad-hoc arbitration. In this respect, Art. 612 of the new Code

of Civil Procedure states that “if the organization or institution provided for in Art. 607 declines to

conduct arbitration, the arbitration agreement is hold valid and the dispute between the pa rties

shall be settled according to provisions in the instrument hereby”.

35

In the old Code of Civil Procedure, it was stipulated that the action for

annulment is judged in two levels of jurisdiction. On a first level, jurisdiction fell

upon the district court in which the arbitration took place, immediately superior to

that which, in the absence of the arbitration agreement, should have been referred

to hear the case on the merits (Art. 365 para. 1 Code of Civil procedure). Then,

the relevant court decision may be challenged only by appeal (Art. 366 last

paragraph in the Code of Civil Procedure). Pursuant to Art. 366

1

in the Code of

Civil Procedure, the action for annulment was judged by the panel set for hearing

in the first instance, and the appeal by the panel referred to for this remedy.

Therefore, the new Code of Civil Procedure makes the procedure on the

abrogation of the arbitration award to be consumed in the Appellate Court that

shall be ruled in the panel formed for appeal. Thus, the entire procedure for

resolving a dispute by arbitration simplifies and accelerates. Such an approach is

consistent with the principles of celerity and confidence

41)

governing, among

other principles, the theory of arbitration.

Amendment brought about under the new Code of Civil Procedure, although

no doubt welcomed by litigants, brings back a series of dilemmas. The first

dilemma concerns the nature of the action for annulment. Is this an extraordinary

means of attack or an independent action

42)

? As far as we are concerned, for

reasons we should not resume hereunder, we chose the second option. This

choice, however, opens the way to a second dilemma. If it is about a proper

action, its settlement on a single level of jurisdiction, could it be constitutional?

Our answer is that where and when the Constitution guarantees litigants hearing

of their cases on several levels of jurisdiction, it covers disputes falling exclusively

under the jurisdiction of public courts. Or, even if the action for annulment is

independent, it is prone to the abrogation of a judicial deed due to formal or

41)

The dynamics of internatio nal economic relations depends on trust between the parties and

this to the extent law is able to provide suitable regulations in order to accelerate shaping of legal

relationships protecting those who, in good faith, have taken risks. Commercial arbitration,

particularly in its international version, is or s hould be t he generator of such a trust while meeting

the exigencies of commercial celerity. For an analysis of international commercial arbitration

institution’s potential to generate trust, see T. R. Popescu, Dreptul come rŃului internaŃional

(International Trade Law), Didactic and Pedagogic Publishing House, Bucharest, 1983, p. 35 1-

352; furthermore, in terms of the i mpact of celerity and credit exigencies over regulations de ju re

of international trade law, see A. Severin, op. cit., p. 22-61.

42)

On the subject of the nature o f the a ction for annulment, see G. Boroi, D. Radescu, Codul

de p rocedură civilă comentat şi adnotat (Code of Civil Procedure reviewed and annotated), All

Publishing House, Buchares t, 19 94, p. 615 , Gh. Beleiu, E. Osipenco, M. Cozmanciuc,

DesfiinŃarea hotărârii arbitrale (Abolition of the arbitration award), in “Law” no. 9/1995, p. 15,

S. Zilberstein, I. Bacanu, DesfiinŃarea hotărârii arbitrale, in “Law” no. 10/1 996, p. 3 1-33, VM

Ciobanu, Despre natura juridică a acŃiunii în anulare (On the legal nature of the action for

annulment), in “Law” no. 1/2002, p. 76-83. Likewise, see Decision passed by the former Supreme

Court of Justice – Joint Sections, no. V/June 25

th

, 2001, published in the “Official Gazette of

Romania”, Part I, no. 675/2001.

36

radical reasons (public policy). On the other hand, it is also arguable that the right

to trial in several steps is available; the interested parties may abandon it all the

more so as they can forgo even the courts jurisdiction’ to hear the case on the

merits. If under the same system of jurisdiction it can not be waived in the abstract

one or more of the steps legally required, when such systems combine, a similar

waiver may be allowed. This, at least as long as the law is silent; for when it

wished to prohibit it, it did so expressly

43)

.

15. Finally, we fall back upon the identical provisions of Art. 608 para. 3 and

610 para. 3, with the view to add some comments on the relationship between the

provisions of the new Code of Civil Procedure relating to institutional arbitration,

provisions of the rules of arbitration procedure of the various permanent arbitral

institutions and their application over time. The aforementioned articles provide

that as to disputes subject to institutional arbitration there applies its procedural

rules in force at the time of referral, unless the parties have otherwise agreed. This

means that the rules of arbitral procedure apply, in principle, immediately.

Legal regulation cited is practical in nature, bearing in mind that from the

arbitration agreement date until initiation of arbitration action it might take a very

long time, and arbitrators who do not perform permanent arbitration activities

could encounter difficulties in getting to know and apply rules of procedure which

are no longer in force and that they have possibly not ever applied. Equally, this

provision sets forth the legislator’s conception according to which arbitration is

primarily construed as a judicial deed and not as a contractual one. If the

contractual size of arbitration would have prevailed, perhaps the solution would

have been that of applying the rules of procedure valid on the date of the

arbitration agreement’s conclusion, the only ones the parties could know and

consider the moment they decided to remove jurisdiction of state courts. In

contractual matters, the principle goes that the law that governed the agreement’s

termination shall be all enforceable until its expiry.

But anyway, the parties may deviate from above. Both out of the literal

interpretation of the reviewed purport and of its teleological interpretation, hence

it appears that deviation may arise under two conditions. Firstly, such a waiver

may arise only by agreement of the parties, the opposition of only one of them is

sufficient. The law is clear and it sets forth the need for an “agreement” of the

parties. The solution adopted by the legislator may surprise, since it is likely to

strike the balance between the Parties as far as it puts only one of them to bear the

negative consequences of the application of procedural rules that it was unaware

of at the time it opted for arbitration and which, should it have been informed of,

43)

On these lines, see Art. 600 of the new Code of Civil Procedure, which sets forth that “The

Parties can not waive under the arbitration agreement the right to initiate action for annulment

against arbitral award” (p ara. 1): “Waiver of this right can only be made after the arbitral award

is rendered” (para. 2).

37

would not have them accepted. What if, in such circumstances, the other party

refuses to give consent on the application of procedural rules applicable on the

date of conclusion of the arbitration agreement? We hereby argue that such an

attitude could be described as being in bad faith. This is particularly true the more

so as the Party reprobating in unable to prove that, by accepting waiver warranted

under the law, it would have anything to lose. Since, according to the rules

governing execution of contracts in good faith, one Party to the arbitration

agreement may not be constrained to perform the duties arising thereof (i.e., to

submit a dispute to a particular arbitration procedure) if it appears clear that,

should it had been aware of the applicable procedure, it would not have agreed to

conclude the said convention, the arbitration court should rule invalidation of the

arbitration agreement and withdraw.

De lege ferenda, it would probably be appropriate to provide that if the

institutional arbitration rules of procedure effectively applicable to the dispute are

different from the rules valid on the arbitration agreement’s conclusion date,

either Party may decline to apply the rules in force by the arbitration proceedings’

time, provided that such attitude is adopted in good faith. This means that the

Party wishing to avoid incidence of rules of procedure applicable by the time of

the action must prove that the rules in force at the date of conclusion of the

arbitration agreement were determinant in taking the decision to submit future

disputes to arbitration.

Secondly, we argue that the right of parties to “mutually agree” on the

application of other rules of arbitral procedure than those prevailing at the date of

referral to the arbitration court can not be untied to rules. Parties have no reason to

refer to other rules than those allowed for by the arbitration agreement. This may

be explicit – reference to certain rules is contained in the agreement – or implicit –

where the agreement referred to a particular arbitral institution, being understood

that its rules shall also be considered, obviously in force on the agreement’s date.

Consequently, when the Parties agree on their dispute to be subject to other rules

of procedure than those valid on the action’s date, they may choose only rules

applicable by the time of the arbitration agreement.

16. As argued in the preamble, the new Code of Civil Procedure shall enter

into force under a special law, and the time until then is deemed to be employed to

prepare its application promptly.

Arbitration agreements concluded today are likely to be effective under the

rules of procedure circumscribed by the provisions of the new Code of Civil

Procedure, i.e., rules different from the ones in force on the relevant agreement’s

date. Aware of this case, interested subjects of law shall keep clear to designate

Romanian arbitration institutions as relevant courts, insomuch as they get wise to

the existence of inconsistencies between their procedural rules and provisions of

the new Code of Civil Procedure. Therefore, we argue that harmonization of rules

38

of procedure currently applied by the institutional arbitration in Romania with the

new Code of Civil Procedure should be implemented immediately. Otherwise, the

disadvantages ensuing from the application of rules in force by the action’s date

that are different from those on the arbitration agreement’s date can not be

avoided. Thereupon, at the expense of institutional arbitration in Romania and

legitimate interests of participants in civil / commercial circuit.

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