Principles of law applicable to the arbitration proceedings

• Author: Diana Loredana Hogas
• Position: Alexandru Ioan Cuza' University of Iasi
• Pages: 128-145

Principles of law applicable to the arbitration proceedings

Ph.D. student Diana Loredana HOGAȘ1

Most sacred of all courts is the

"tribunal which the litigants appoint

in common for themselves, choosing

certain persons by agreement."2

Abstract

The essential characteristics of the arbitration are its private nature, voluntary

and confidential, which at first glance may give the impression of an institution less

"endowed" with strict rules of substantive and procedural law. Parties are free to choose or

even to develop rules that may constitute into an arbitration proceeding, compulsory for the

parties and arbitrators, respected and applied by them.

This contractual freedom of parties is protected, but also limited by a number of

principles of law which the legislator deems essential to a right judgment, either in court or

in arbitration.

The study objectives are the following: to identify the principles of law applicable

to the arbitral procedure and their implementation.

To achieve those objectives it is used the method of analysis and synthesis, the

comparative method, the historical-legal method, the sociological method, the dialectical

method and the systematic method.

Combining theoretical and practical issues, the work will be of great use to the

research, higher education, but not least, and to the practitioners.

Keywords: principles of law, arbitration, arbitral proceedings; Romanian Code of

Civil Procedure, international conventions.

JEL Classification : K41

1. Introduction

Commercial arbitration is defined as "the institution in which the party

authorized to the extent permitted by law, one or more individuals, in the given

circumstances, to settle a legal dispute that precludes litigation by taking it away

from the jurisdiction of the courts "3.





1 Diana Loredana Hogaş – „Alexandru Ioan Cuza” University of Iaşi, diana_hogas@yahoo.com

2 Plato, Legile, Publisher IRI, Bucharest, 1995, p. 181.

3 Ion Dealeanu, Sergiu Deleanu, Arbitrajul intern si international, Rosetti Publishing, Bucharest,

2005, p. 10.

Juridical Tribune Volume 4, Issue 2, December 2014

129

National arbitration institution is regulated within the Book IV and

international arbitration institution is regulated in the Title IV of Book VII of the

Romanian Code of Civil Procedure.

Romania has signed the multilateral international conventions that

regulates arbitration, both before the Second World War and afterwards; in this

respect, Romania joined the Protocol with respect to arbitration clauses concluded

at Geneva on 24 March 1923, the Convention on the Recognition and Enforcement

of Foreign Arbitral Awards, done at New York on 10 June 1958, the European

Convention on International Commercial Arbitration, done at Geneva on 21 April

1961, the Washington Convention on the settlement by arbitration of disputes

relating to foreign investments completed in 1965, the Moscow Agreement on the

settlement of that arbitration of disputes arising from civil law relations of

economic and scientific-technical cooperation within CMEA, completed in 1972,

the Rules of Arbitration of the United Nations Commission on International Trade

Law adopted by the UN General Assembly in 1976, recommended to be used to

resolve disputes arising from contracts in international trade relations.

Commercial arbitration institution is one of current and future. In 1998,

while organizing a meeting in New York to celebrate the forty years since the

adoption of the Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, it was considered that the role and importance of commercial

arbitration increases, and at another meeting, this time in Vienna, in 1999, it was

concluded that increasingly more states apply the law - model on commercial

Arbitration adopted by UNCITRAL in 1985.

Recent statistics show increasing trend of disputes that are entrusted to the

Court of Arbitration; thus, the International Court of Arbitration in London faced

during 2007 - 2008 with an increase of 55% of disputes that had to resolve, and in

2009 recorded an increase of 14%. The same scenario can be found and the

International Court of Arbitration in Paris and Switzerland, first recorded in 2008

with 11% more cases, and in 2009, 23% more Swiss Court had an increase of 15%

in 2008, and in 2009, 53%. International Court of Arbitration in Dubai in 2009 and

has doubled the number of disputes settled from 2003, and it seems that Asia

enjoys the same confidence in resolving disputes by arbitration.

Through this paper we intend to research and analyze in a comprehensive

manner the principles applicable to arbitration proceedings.

In achieving the purpose of this paper, we will cover the following main

objectives: (i) identification of the applicable principles of the arbitration

procedure; (ii) the manner of their application.

Since the research objectives require a detailed and complex investigation

of the principles applicable in the arbitration procedure, the methodology used

involves both methods, borrowed from other areas of research and their own

methods of legal research. Therefore, achieving the proposed objectives, I use the

method of analysis and synthesis, comparative method, historical and legal method,

sociological method, the dialectical method and the systematic method.