The arbitration clause. Aspects of comparative law

• Author: M.M. Bârsan/M.M. Cardis
• Position: Transilvania University of Brasov, Law Faculty/Transilvania University of Brasov
• Pages: 155-162

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 9 (58) No. 2 - 2016

THE ARBITRATION CLAUSE.

ASPECTS OF COMPARATIVE LAW.

M.M. BÂRSAN1 M.M. CARDIŞ2

Abstract: In the matter of contracts, the Civil Code regulates, in article

1169 the freedom to enter into a contract by stating that the „parties are free

to enter into any contracts and to determine the content of those contracts,

within the limits stated by law, public order and morals”. As a result, the

parties are free to reach an understanding regarding the way in which they

will create, change, execute or terminate a legal act, within the limits stated

above. This is achieved by writing in the contract the so-called arbitration

clause. However, we must state that this procedure does not restrict free

access to justice; it offers the parties another possibility of solving a potential

conflict thus ensuring a closer connection between man and justice, by

facilitating the free access to several types of manifestation in human society.

Key words: Civil Procedure Code, Civil Code, contracts, law, arbitration

clause.

1. Definition and concept

In order to fully understand the nature and specifics of the arbitration clause, but also its

significant importance in regards to its purpose, that of creating a freely consented

connection between man and justice, as the former chooses the way in which a conflict is

solved, before these means are even necessary, we must a provide an extremely accurate

definition of this clause. One of the first statements to be made is in regard to the meaning

of the word „clause”; a contractual clause is that provision whereby the parties of a

contract agree on one of the aspects of the contract, unless the law states otherwise.

Article 550 first alignment of the Civil Procedure Code states that „the arbitration

clause helps the parties in agreeing that any potential litigation arising from the contract

will be solved by arbitration also pointing out, under the sanction of annulment, the

means by which the arbiters will be named. In case of institutional arbitration, a reference

to the institution or the procedural rules of the arbitration institution is sufficient”.

In crystallizing the concept of „arbitration clause” we must also consider the provisions

of article 549 first alignment of the Civil Procedure Code, which mentions that the

„arbitration convention can be concluded in the form of an arbitration clause, written in

the main contract or established by separate convention as annex to the main contract or

under the form of compromise″. Through the arbitration convention, the parties agree in

writing that all present of future litigation, resulting from their legal relations to be solved

1 Transilvania University of Braşov, Law Faculty, magdalena_maria_neagu@yahoo.com

2 Transilvania University of Braşov.