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

• Author: Gina Livioara Goga
• Pages: 181-184

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.