CHAPTER I. INTRODUCTION
In their efforts to solve the sometimes inevitable disputes arising from the various contractual relationships connecting them, the parties of any conflict aim a unique purpose: obtaining the final and binding jurisdictional decision that constitutes the end of the controversy and enforcing it, as the key element for obtaining satisfaction of their claims or defenses.
When requested to draft a contract between two or more parties, sooner or later during the process, lawyers will find themselves in the situation to fill in the blanks of the “Litigation” clause.
Particularly in the area of commercial matters – but not limited to such – the parties have the possibility to choose among the two major alternative disputes resolution systems, the private arbitration or the courts of law.
And the question comes naturally: arbitration or court proceedings?
In the preliminaries of most materials addressing this topic, authors do not insist much on depicting the characteristics of the courts of law, as such are considered familiar to the informed reader, but they rather focus on explaining the arbitration.
In the same line of argumentation, this author will commence the present paper by observing that protagonists of the economical environment not only have created an invisible net of interconnecting functional bounds and relationships, but they have also provided for a self regulatory private justice mechanisms that would help them restore harmony when there’s trouble in the commercial contracts’ Universe, the arbitration.
Among the many reasons why parties choose this private justice system lies the parties’ desire to have an expedited procedure, to choose a particular arbitrator having a good reputation and well-renowned skills and expertise in the matter of the dispute, to have control over the timetable of the dispute, to maintain confidentiality, to gain international recognition and enforcement of the arbitral tribunal decisions, which are intended to be final and binding.
Alternatively, merchants can always opt to use the traditional litigation procedure, an activity organized in Romania by the state, in accordance with the provisions of art. 126 in the Romanian Constitution: “Justice shall be administered by the High Court of Cassation and Justice and by the other courts of law as provided by the law” and ruled by the relevant provisions of the Civil Code and of the Civil Procedure Code of Romania.
There are advantages and disadvantages in choosing either one of the two alternatives and the decision is usually made by taking into account the specific of the activity, the duration of the procedure in both private and state systems, the applicable set of procedural and substantive legal norms, the costs involved in courts procedure versus arbitration, the means of evidence allowed and their administration, the power of the decisions rendered and the possibilities of their enforcement.
As we shall see, the question mentioned at the beginning of this Chapter – arbitration or courts of law – does not always receive a crystal clear answer.
In fact, in many cases, during the parties’ endeavor to escape the arbitration proceedings or to obtain either court assistance or enforceable court-ordered interim or provisional measures arbitration proceedings are accompanied by parallel court proceedings.
So, as legal researchers and practitioners, when found before the question “arbitration or court proceedings?” we may find ourselves in the situation to give the parties in conflict the most unconvincing and controversial answer: it depends!
In order to create a practical approach, this author will compare the main points of interest in the legal provision and regulations governing the procedure before the courts of law, based upon the relevant provisions in the old and the New Civil Procedure Code texts and the procedure before The Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania, the most modern arbitration institution organized in Romania, guided by its Rules of arbitration procedure and by the provisions in Book IV and Book VII – Title IV of the NCPC.
:: Full text: JURIDICE.ro
Magistrate – Assistant for the Panel of 5 Judges in Criminal Matters of the High Court of Cassation and Justice of Romania