The utility of the rescission clause in the settlement of disputes arising from international trade contracts

• Author: Barbulescu O.
• Pages: 373-378

Bulletin of the Transilvania University of Braşov

Series V: Economic Sciences • Vol. 8 (57) No. 2 - 2015

The utility of the rescission clause in the settlement of

disputes arising from international trade contracts

Oana BRBULESCU1

Abstract: Starting from the opportunities that the creditor of an obligation has in order to

settle his claims by means of the commercial arbitration, as an alternative to court under

common law, with a view to punishing in the most effective way the failure of the obligation

by the borrower reveals the necessity to introduce the rescission clause in international

commercial contracts governed by a foreign law. This paper aims to emphasize the practical

utility of the institution of rescission clause in the light of the new Civil Code regulations, in

whose presence the role of the court is entirely removed in as far as the decision statement is

concerned.

Key words: arbitration, arbitration clause, failure of the obligation, rescission clause

1. Introduction

International commercial arbitration stands for an alternative way of settling

commercial disputes by persons or organizations chosen and invested by the parties,

which by their will remove, in as far as that claim is concerned, the jurisdiction of

the courts of common law and the applicability of national procedures.

In the first sense, this concept designates the appropriate means to regulate

quickly and fairly the international disputes which arise from commercial transactions in

the domain of goods and services exchange (Cpţân and Babiuc 1993, 192). The

market is no longer the place where the consumer expresses his needs as demands,

allowing the producer to know and satisfy them, but it has become the means by

which the professional accumulates by far more capital (Neacşu 2011, 11). This new

situation can induce multiplying effects once diverse mechanisms are put in place,

generating results on large scales (Drumea and Spatariu 2011, 387).

In another sense, international commercial arbitration is viewed as a special

jurisdiction derogatory from the procedural common law, meant both to settle the

disputes arising from commercial international relations and to facilitate the State’s

participation in international division of labor (Dscloiu 2003, 22). As method of

1 Transilvania University of Braşov, oana.barbulescu@unitbv.ro