The efficacy of the arbitration clause in a simulated act

Author:Tudor Vlad R?dulescu
Position:PhD Student, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (email: tradulescu@yahoo.com).
Pages:32-39
LESIJ NO. XXIII, VOL. 2/2016
THE EFFICACY OF THE ARBITRATION CLAUSE IN A
SIMULATED ACT
Tudor Vlad RDULESCU
Abstract
The article focuses on the effects that an arbitra tion clause can still produce when it is contained
in a simulated opera tion, whether it is in the appa rent act or in the secret one, depending on the forms
of simulation.
Keywords: simulation, arbitr ation clause, rela tivity of contracts, overt act, ccovert agr eement.
1. Introduction (Times New Roman,
Bold, 10, justify)
The material aims to address the issue
of compatibility between the arbitration
clause and the operation of simulation. More
specifically, to answer two problems that
could arise if the parties, chosing to hide the
true legal relationship between them, have
concluded a secret act, known only by them,
and a public act, ostensible, enforceab le
against third parties, where they chose to
introduce an arbitration clause.
Thus, the two problems can be
summarized as follows: 1. the action for
declaration of the simulation will be the
jurisdiction of the courts or of an arbitral
tribunal? and 2. if di sputes are in relation to
the performance of the obligations arising
from the covert contract, the one taking
effect between the parties, the competence
will belong to the courts or to the arbitral
tribunal?
The above problems may arise, as we
have shown, where the parties have included
the arbitration clause only in the content of
the public act, and not in the secret one, and
shall be established to what extent this
PhD Student, Faculty of Law, “NicolaeăTitulescu”ăUniversityăofăBucharest (email: tradulescu@yahoo.com).
clause will be more effecti ve, or, in in other
words, what is the relation between the
arbitration clause and the avert contract
between the parties: of independence or
dependence?
To provide an answer to these
problems, we will do a review of the two
institutions meeting at issue: the
simulation, exception to the enforceability
of documents to third parties, but especially
viewed from the perspective of relativity and
enforceability if the effects of contracts
between the parties, and the arbitration
agreement, disguised under the mantle of
arbitration clause, first seen individually,
and then we will review to what extent the
second one can somehow influence the
action for declaration of the simulation or
general or material jurisdiction where there
occur issues in the execution of rights and
obligations arising between the parties.
2. Some consideration regarding the
legal operation of simulation
Without trying, in these lines, to
formulate a new theory on simulation, or to
fully resume the existing one, we only intend
to draw some determining elements of this

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