ro fr
universul juridic magazin
Revista Română de Drept Privat

Arbitrality of concession agreement disputes, in the light of the provisions in the New Civil Code

The legal treatment applicable to „administrative agreements”, in general, respec tively to concession agreements, in particular, is a complex topic, as it combines elements of the public and private law. Establishing the level of incidence of the two types of regulations has constantly been a matter of controversy, ever since the interwar period. Though the univocal recognition of the existence of administrative agreements was operated in 2004, through the organic Law on administrative contentious matters, things are still not very clear. The purpose of this study is to bring into discussion a series of aspects concerning the admissibility of arbitrations having as subject the concession of public assets, public works, and services, in the context of the existence of two special norms (GEO no. 34/2006 and GEO no. 54/2006) and of the enforcement of the new Civil Procedure Code. The systematic interpretation of the texts related to arbitration clauses in all these acts is not an easy task, due to the legislator’s lack of precision and to the rather unclear way in which it understood to stray from the exclusive competency of contentious administrative courts, initially set through the Law no. 554/2004. As a matter of fact, the very terminology employed in the new Civil Procedure Code raises some question marks as to the scope of arbitration in concession agreements. The Code apparently draws a clear line between public authorities, on the one hand (they have to be authorized through special laws or international conventions to approve arbitration clauses), and the public persons carrying out economic activities, on the other hand (for which the faculty of resorting to arbitration is the rule), despite the fact that the law and the doctrine do include the public „institutions” („services”) under the scope of „contracting authorities”, and some public authorities involved in economic activities do not hold legal personality.