According to art. 542 par. (1) of the Civil Procedure Code, individuals who have full legal capacity may agree to settle by arbitration disputes between them. However, disputes that relate to the civil status, the capacity of individuals, inheritance debate, family relations, and rights regarding which the parties can not dispose can not be subject to arbitration.
The arbitration agreement represents the manner in which the arbitration is entrusted to one or more persons who are invested in this respect by the parties or in accordance with that agreement to hear the case and deliver a final decision which is binding on them.
The arbitration agreement excludes the jurisdiction of the courts for the dispuse in cause.
According to art. 548, the arbitration agreement must be concluded in writing. This condition is met when the submission of the cause to arbitration was agreed upon by exchange of correspondence, regardless of its form, or the exchange of procedural acts.
However, in case the arbitration agreement concerns a dispute relating to the transfer of ownership and / or the establishment of another real right on immovable property, the convention must be concluded in notarial authentic form, under the sanction of nullity.
In accordance with art. 549 of the Civil Procedure Code, the arbitration agreement can be concluded as an arbitration clause, found in the main contract or determined in a separate agreement, which refers to the main contract, either in the form of compromise.
The establishment of the arbitration agreement may also result from the parties' written agreement made before the arbitration tribunal.
Under the arbitration clause the parties agree that the disputes that may arise from the contract where it’s stipulated or disputes related to the contract are to be settled by arbitration, under the mandatory condition to determine the manner of appointment of arbitrators. The validity of the arbitration clause does not depend on the validity of the contract that contains it.
Through the means of compromise, the parties agree that any dispute that arises between them will be settled by arbitration, mandatorily determining the object of the dispute and the names of the arbitrators or the manner of appointing them in the case of ad hoc arbitration. The compromise may be concluded even if the dispute between the parties is already pending before another court.
The court that is seised with a dispute for which an arbitration agreement has been concluded must verify its own authority and declare the lack of jurisdiction for itself only if the parties or one of them so requests, citing the arbitration agreement.
However, according to art. 554 par. (2), the court shall retain the cause for settlement if:
◦ the defendant has filed defenses on the merits of the cause without any reserve founded on the arbitration agreement;
◦ the arbitration agreement is null and void or inoperative;
◦ the arbitration tribunal can’t be constituted for obvious reasons attributable to the defendant in the arbitration.
For more information regarding the conclusion of the arbitration agreement, the forms the arbitration agreement can take, or the effects of the arbitration clause or the compromise, do not hesitate to contact one of the lawyers of the law firm Darie, Manea & associates, who have extensive experience in the field of civil law and the civil law procedure. Our team is dedicated to meeting our clients' needs, providing complete and updated information, as well as representation before the competent authorities when required.