Controversies regarding Competence to settle through Arbitration the Litigations relating to Public Procurement Contracts

Author:Gina Livioara Goga
Pages:181-184
SUMMARY

The current legislation on public procurement, namely Government Emergency Ordinance no. 34/2006 on the public procurement contracts, public works concession contracts and service concession, currently governs the arbitration institution, having the possibility of settling any disputes regarding the execution of contracts. We consider that the contested provisions infringe the principle of... (see full summary)

 
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The European Citizen and Public Administration
181
Considerations Relating to the Jurisdiction of the Arbitration Litigation on
Solving Public Acquisition Contracts
Gina Livioara Goga1
Abstract: The current legislation on public procurement, namely Government Emergency Ordinance no.
34/2006 on the public procurement contracts, public works concession contracts and service concession,
currently governs the arbitration institution, having the possibility of settling any disputes regarding the
execution of contracts. We consider that the contested provisions infringe the principle o f predictability, as
they are not clear because of the regulation of the two articles, and thus the analysis of the entire chapter
entitled Solving complaints (Chapter IX of the G.E.O. 34/2006) in conjunction with the title order or with
the purpose and principles of the adoption of G.E.O. 34/2006, it appears that it refers only to the procedure
for settling disputes arising in attributing public procurement contracts, concession contracts for public works
service concession contracts.
Keywords: public procurement; principle of predictability; litigation
The object of contention of this article is the provisions of art. 286, par. 1 sentence II, based on the
provisions of art. 288¹ Government Emergency Ordinance no. 34/2006 regarding the awarding of
public acquisition contracts, public works concession contracts and service concession contracts
published in the Official Gazette of Romania, Part I, no. 418 of 15 May 2006.
The current legislation on public acquisitions, namely Government Emergency Ordinance no. 34/2006
regarding the awarding of public acquisition contracts, public works concession contracts and service
concession contracts now regulates the institution of arbitration as a possibility of solving the possible
litigation on contracts’ execution. According to depositions of art. 2881 of GEO 34/2006, “parties may
agree that all litigations related to the execution of contracts covered by this emergency ordinance
shall be settled by arbitration”.
According to the provisions of Art. 286 of GEO 34/2006, “trials and applications for compensation to
repair damages caused in the award procedure and those on the execution, nullity, annulment,
cancellation or unilateral denunciation of public acquisition contracts shall be settled in the first
instance by the department of Administrative and Fiscal Contentious tribunal in the district where the
headquarters of the contracting authority”, but in conjunction with art. 288¹ jurisdiction can be
attributed also to arbitration, in the execution of contracts
Administrative intrinsic nature of public acquisition contract is enshrined in the express provisions of
GEO no. 34/2006, in accordance with the provisions of Law no. 554/2004, according to which
litigations resulting from the execution of such contracts shall be decided by the administrative
1 Senior Lecturer, PhD, Faculty of Law, “Danubius” Un iversity of Galati, Romania, Address: 3 Galati Blvd, 800654 Galati,
Romania. Tel.: +40.372.361.102, fax: 40.372.361.290, Corresponding author: ginagoga@univ-danubius.ro.

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