Editura Universitara Procesul arbitral international conform reglementarilor nationale

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ISBN: 978-606-28-1013-9

DOI: 10.5682/9786062810139

Publisher year: 2019

Edition: I

Pages: 298

Publisher: Universitară

Author: Raul Miron

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The paper "International arbitration process according to national regulations" developed by Dr. Raul Miron is the result of his studies and research conducted in doctoral training, studies completed by defending the doctoral thesis in the summer of 2019.

This paper is a monograph of the arbitration process in the current phase of regulation and application in Romania, with a somewhat specific systematization of a reference manual in the field and thus offering the possibility of easy assimilation of this subject by those interested, especially by students. As far as practitioners are concerned, the monograph provides them with numerous points of support when they face issues related to arbitration, points of support represented by controversial issues, some pending including the level of arbitrators or judges involved in issues such as those concerning the action for annulment of an arbitral award, the execution of arbitral awards and their recognition.

The way of approaching the issues related to the arbitration process is an efficient one, having two major coordinates: a first coordinate consists in the western methodology of systematization of the researched matter, based on reference works in the field and rigorously indicated in the bibliography and theses; the second coordinate is related to the method of approaching more or less controversial issues in terms of the legal normative hierarchy and the natural meaning of the statements. The two ways give style, intelligibility to the text of the paper even for those uninitiated in the field of legal sciences, but interested in this alternative way of litigation justice.

Obviously, the passionate interest of the author Raul Miron for this field of research is reflected in the different statements he opines, often giving the reading spicy tones and making the text easier to read.

Monograph The international arbitration process according to national regulations is currently necessary for both didactic and scientific and practical purposes, because the field of arbitration and, in general, of resolving disputes by means other than the judicial ones is extremely dynamic and fluctuating in Romania, but of international interest, at the same time, when we refer to issues related to the recognition or execution of foreign arbitral awards. Thus, the paper also contributes to the awareness of the usefulness of arbitration in Romania, as well as of the qualities and conduct that those who pursue a professional career as an arbitrator must have. At the same time, from a scientific point of view, the author Raul Miron enunciates a series of substantiated legal proposals, among which is the reference to the normative text in our fundamental settlement regarding the invocation of exceptions of unconstitutionality before arbitral tribunals.

The monograph, rationae materiae, starts from the existence of any regulations applicable in Romania regarding arbitration and arbitral award, which is why the approach is broader than being reduced exclusively to an arbitration process, including issues related to the arbitration process in three distinct stages : prior to the occurrence of an arbitration process, especially the arguments in favor of resorting to arbitration; during the arbitration process until its completion; subsequent to the adoption of an arbitral award, especially the issues related to the recognition and enforcement of court decisions.

Since the monograph represents the very doctoral thesis of the author Raul Miron and a basic beginning of his scientific and university career as a doctor of law, I take this opportunity to speak through the preface and congratulate him and send him much success. in continuation, development and capitalization of his research.

Dr. Nicolae Ploesteanu
  • Procesul arbitral international conform reglementarilor nationale

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Raul Miron

CONTENT

CHAPTER 1
INTRODUCTORY ASPECTS / 11


General aspects regarding the notion of international arbitration / 11
Brief look at the historical evolution of international commercial arbitration / 16
Arbitration in antiquity / 17
Arbitration in Medieval Europe / 22
International arbitration in the XVIII-XIX / 25 centuries
International conventions on international arbitration / 29
The Hague Conventions for the Peaceful Settlement of International Disputes / 30
The Treaties of Geneva / 32
New York Convention / 35
National and international standards regarding the international arbitration process / 37
National standards / 37

CHAPTER 2.
GENERAL CONSIDERATIONS ON INTERNATIONAL ARBITRATION IN ROMANIA / 54


Sources and evolution of the international arbitration process / 54
The nature and legal basis of international arbitration in the light of national regulation / 58
Classification of international arbitration / 60
Private law arbitration and public law arbitration / 61
Ad hoc arbitration and institutionalized arbitration / 63
Strict legal arbitration and equity arbitration / 65
Characters of international arbitration / 67
Neutrality of the procedure and of the decisional forum / 67
Autonomy of the will of the parties / 70
Speed ​​of the arbitration procedure / 72
Confidentiality of the procedure / 73
Specialization of the decision - making forum / 75
Reduced costs / 76

CHAPTER 3.
ARBITRATION PROCESS / 79


Classification and field of application / 79
Arbitrability of the dispute / 81
Arbitration Convention / 85
Notion and qualification / 85
Substantive and formal conditions / 87
Forms of the arbitration agreement / 90
Elements and characteristics of the arbitration agreement / 92
The effectiveness of the arbitration agreement and the pathological conventions / 93
The effects of the arbitration agreement / 94
Arbitral Tribunal / 95
Notion / 95
Composition of the arbitral tribunal / 102
Appointment of arbitrators. Rights and obligations / 108
Qualities required of international referees / 115
Impartiality and independence of arbitrators / 124
Liability of arbitrators / 148
Disciplinary liability / 149
Civil liability / 153
Criminal liability / 156
Jurisdiction of the arbitral tribunal / 165
Arbitration proceedings / 170
General and introductory aspects / 170
Language in which the procedure takes place / 171
Applicable law / 171
Referral to the arbitral tribunal / 174
Other persons who may take part in the arbitration proceedings / 179
Provisional and conservative measures / 183
Probele / 188
Arbitration costs / 190

CHAPTER 4
ARBITRAL DECISION / 193


Notion and classification / 193
Form and substance conditions / 196
The effects of the decision / 201

CHAPTER 5
RECOGNITION AND EXECUTION OF FOREIGN ARBITRAL DECISIONS / 204


Introductory aspects / 204
New York Convention / 206
Model Law UNCITRAL / 209
Judgment procedure / 210
Solving the application / 215
Reasons for refusal of recognition and enforcement / 215
The parties did not have the capacity to conclude the arbitration agreement according to the law applicable to each, established according to the law of the state where the decision was pronounced / 216
The arbitration agreement was not valid according to the law to which the parties submitted it or, in the absence of its establishment, according to the law of the State in which the decision was pronounced / 217
The party against whom the decision is invoked was not properly informed about the arbitration procedure or was unable to capitalize on its own defense in the arbitration process / 219
The constitution of the arbitral tribunal or the arbitral procedure did not comply with the convention of the parties or, in the absence of their agreement, with the law of the place of the ARBITRAL PROCESS / 221
The ruling concerns a dispute not provided for in the arbitration agreement or outside the limits set by it or contains provisions that exceed the terms of the arbitration agreement. however, if the provisions of the judgment concerning matters subject to arbitration can be separated from those relating to matters not subject to arbitration, the former may be recognized and declared executors / 224
The arbitral award has not yet become binding on the parties or has been annulled or suspended by a competent authority of the State in which the according to the law of which it was pronounced / 224
Violation of the public order of Romanian private international law / 225
Other reasons for refusal identified in judicial practice / 228
Execution of foreign arbitral awards
Legal regime established by the New York Convention / 230
Scope of the Convention / 230
Procedure for the Recognition and Enforcement of Foreign Arbitral Awards under the New York Convention / 235
Reasons for refusal / 237
Execution of foreign arbitral awards according to Model Law UNCITRAL / 251
CONCLUSIONS / 267
BIBLIOGRAPHY / 278

The paper "International arbitration process according to national regulations" developed by Dr. Raul Miron is the result of his studies and research conducted in doctoral training, studies completed by defending the doctoral thesis in the summer of 2019.

This paper is a monograph of the arbitration process in the current phase of regulation and application in Romania, with a somewhat specific systematization of a reference manual in the field and thus offering the possibility of easy assimilation of this subject by those interested, especially by students. As far as practitioners are concerned, the monograph provides them with numerous points of support when they face issues related to arbitration, points of support represented by controversial issues, some pending including the level of arbitrators or judges involved in issues such as those concerning the action for annulment of an arbitral award, the execution of arbitral awards and their recognition.

The way of approaching the issues related to the arbitration process is an efficient one, having two major coordinates: a first coordinate consists in the western methodology of systematization of the researched matter, based on reference works in the field and rigorously indicated in the bibliography and theses; the second coordinate is related to the method of approaching more or less controversial issues in terms of the legal normative hierarchy and the natural meaning of the statements. The two ways give style, intelligibility to the text of the paper even for those uninitiated in the field of legal sciences, but interested in this alternative way of litigation justice.

Obviously, the passionate interest of the author Raul Miron for this field of research is reflected in the different statements he opines, often giving the reading spicy tones and making the text easier to read.

Monograph The international arbitration process according to national regulations is currently necessary for both didactic and scientific and practical purposes, because the field of arbitration and, in general, of resolving disputes by means other than the judicial ones is extremely dynamic and fluctuating in Romania, but of international interest, at the same time, when we refer to issues related to the recognition or execution of foreign arbitral awards. Thus, the paper also contributes to the awareness of the usefulness of arbitration in Romania, as well as of the qualities and conduct that those who pursue a professional career as an arbitrator must have. At the same time, from a scientific point of view, the author Raul Miron enunciates a series of substantiated legal proposals, among which is the reference to the normative text in our fundamental settlement regarding the invocation of exceptions of unconstitutionality before arbitral tribunals.

The monograph, rationae materiae, starts from the existence of any regulations applicable in Romania regarding arbitration and arbitral award, which is why the approach is broader than being reduced exclusively to an arbitration process, including issues related to the arbitration process in three distinct stages : prior to the occurrence of an arbitration process, especially the arguments in favor of resorting to arbitration; during the arbitration process until its completion; subsequent to the adoption of an arbitral award, especially the issues related to the recognition and enforcement of court decisions.

Since the monograph represents the very doctoral thesis of the author Raul Miron and a basic beginning of his scientific and university career as a doctor of law, I take this opportunity to speak through the preface and congratulate him and send him much success. in continuation, development and capitalization of his research.

Dr. Nicolae Ploesteanu

www.editurauniversitara.ro

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