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