January 2019 - Quick Consulting

The doctrine of “legitimate expectations” and the State’s right to regulate Introduction

Arbitration is a common and exceedingly used way to settle disputes between states and investors. Investor state dispute settlement (ISDS) utilizes arbitration due to the many advantages it brings. Apart from the advantage of arbitration being habitually faster than courts, the parties normatively agree on the arbitrator, respectively arbitrators, and thus can trust the fact the arbitrator will be professional, fair and impartial. In recent years, majority of awards issued by arbitral tribunals, deal with “legitimate expectations” of investors opposing the host states, either at the least being invoked by the claimant (the investor) as part of the fair and equitable treatment principle, on its own as a standard treatment or the tribunal dealing with the question itself. Even though the doctrine is also present in the context of expropriation, in this essay I will solely look at it from the fair and equitable treatment side.

The doctrine of “legitimate expectation” poses many questions in international investment law, the main of which is that of its interpretation. A definition of the doctrine doesn’t exist in any legal order. This makes it difficult to interpret and apply on individual cases. In the essay I will nonetheless look at types of “legitimate expectations” that have been constructed through the years depending on where the investor sees his legitimate expectations originate or derive from. Contractual commitments, unilateral representation of the state and the right to a stable regulatory framework are the three main fields, where it might be claimed the host state breached the legitimate expectations of the foreign investor. Later on I shall examine which situations occurred in which cases and the practical affect it has on awarding tribunal decisions.

The state’s right to regulate is another important topic, closely associated with the fair and equitable treatment principle and the doctrine of “legitimate expectations”. It means the host state is able to create, enforce, amend and abolish its own law, directive or any other legal source. One opinion is that the “legitimate expectations” doctrine prevents this in the way that states can be asked to compensate investors whenever regulatory measures become expropriation measures or violate legitimate standards of treatment. This would suggest the states’ right to regulate is limited and make it very difficult to make changes to their national laws and provisions or any other kind of amendments in their legal order which would have negative impact on the investors, including those changes having negative impacts on the national natural and judicial persons at the same time as well. That is to say “legitimate expectations” cannot mean the investors can rely on the states’ laws and provisions not to change in certain situations. This opinion as well as the opposing one will be discussed later on in the essay.

Legitimate expectations under the fair and equitable treatment

The fair and equitable treatment (FET) standard is one of the fundamental principles of international treaties. It is strongly connected to the fact that international treaties are to be interpreted and dealt with in good faith.[1] The standard traditionally ensures the same, not different or better treatment of foreign investors as the national ones by the host state. Foreign investors however need a little bit more protection by law in their field due to the fact they are at a disadvantage by not participating in the national political system. Foreigners don’t engage in electing legislators, nor have other means of expressing their political preferences about the national legal system. This is why doctrines like “legitimate expectations” in compliance with the fair and equitable treatment are being applied when dealing with international investments.

However, the standard is now the demand to “[…] consistent and transparent behaviour, free of ambiguity that involves the obligation to grant and maintain a stable and predictable legal framework necessary to fulfil the justified expectations of the foreign investor.”[2] Opinion of a number of academics is that:

“States have tried before to curtail the expansive interpretation of FET by explicitly stipulating that it does not require treatment that goes beyond the customary international law minimum standard of treatment of aliens and does not create additional substantive rights.”[3]

And therefore it is necessary to establish what the standard, and together with it the legitimate expectation doctrine is, its basic rights and obligations and a separate clause proclaiming the limits.

Term “legitimate expectations”

As stated above, there is not a legal definition of the term in any legal order, national or international which would clearly state what exactly it is that the investors’ may legitimately expect of the host states and as such what claims they can bring before a judge or an arbitration tribunal. It originated and has been elucidated in United Kingdom’s case law, being based instinctively on natural justice, its principles and the attempt at fair approach. As such has been adopted into many of national legal systems. Transposition into international levels occurred naturally through arbitral case law and has been viewed as a part of the fair and equitable treatment without ever having a legal basis. This causes the necessity of tribunals to interpret the meaning themselves. This happens mainly through awarding arbitral decisions where the stated tribunal clearly and intelligibly explains what kind of legitimate expectations has or has not been breached by the state damaging the investor and why these were regarded as such.

The arbitral tribunal during the Tecmed case[4] was the first tribunal dealing with international matter to consider “legitimate expectations” doctrine as part of the fair and equitable standard while deciding[5]. It derived the doctrine from the good faith principle which is applied in vast amount of international law areas, mainly in constructing and abiding international treaties, as it helps states and nations to cooperate. In its decision, although the term “legitimate expectations” was not used, the tribunal set the basic principles of the doctrine, stating that:

“The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations. Any and all State actions conforming to such criteria should relate not only to the guidelines, directives or requirements issued, or the resolutions approved thereunder, but also to the goals underlying such regulations. The foreign investor also expects the host State to act consistently, i.e. without arbitrarily revoking any preexisting decisions or permits issued by the State that were relied upon by the investor to assume its commitments as well as to plan and launch its commercial and business activities. The investor also expects the State to use the legal instruments that govern the actions of the investor or the investment in conformity with the function usually assigned to such instruments, and not to deprive the investor of its investment without the required compensation.”[6]

By which it basically attempted to engender a kind of a standard which could be used for future investment treaties and disputes resolutions from those originated. This, however, came to a lot of critique, not only from other arbitral tribunals but also professionals in the international law and investment areas. One of the opinions, as seen by Australian professor Zachary Douglas is that “the Tecmed ‘standard’ is actually not a standard at all; it is rather a description of perfect public regulation in a perfect world, to which all states should aspire but very few (if any) will ever attain.”[7]

The original interpretation of the term is very broad and results in incorporating any kind of breach of an investment contract as a breach of the “legitimate expectations” doctrine, and thus arbitral tribunals concluding it as a breach of a treaty. This approach requires the host state to act in such a manner of clarity, stability and certitude, making sure the foreign investor knows at all times, with an overview and beforehand about every law or other regulation in the part of the legal system concerning his field of investments.[8] In the Tecmed case, the state replaced the unlimited license of the investor’s actions with a time limited license, leading to the claim that the change in trading and legitimate space of the investment violates the fair investment treaty between Spain and Mexico. “In this perspective, doctrine, based on un-changeability of the regulations and policies of the host state, provide the investor with inherent right of legitimate expectations, unless state finds a reason to alter it. In addition, the trust of the investor for stabilization the investment has been taken into account.”[9]

The term of the doctrine was later altered into a more specified concept in the case Thunderbird v. Mexico. The tribunal had to decide whether an official letter of assurance from the officials was enough to bring about the legitimate expectations claim. The Thunderbird Gaming Corporation made its investment based on being assured by the state that its regulation doesn’t concern machines provided by the corporation. Mexico later revoked the assurance by declaring the machines as “gambling equipment” and closing down the gaming facilities which caused the company to suffer damages. The arbitral tribunal concluded that the claimant is not able to claim the breach of legitimate expectations in this circumstance and collectively established that:

“Having considered recent investment case law and the good faith principle of international customary law, the concept of ‘legitimate expectations’ relates, within the context of the NAFTA framework, to a situation where a Contracting Party’s conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure by the NAFTA Party of honour those expectations could cause the investor (or investment) to suffer damages.”[10]

It is not to say that this can be applied to any case and dispute without having a look at the details and specific attributes of certain case. The failure to keep a promise needs to be analysed from different aspects. The next part of the paper will try to look at those fields and the different particularities.

Contractual commitments

Contracts are the main tool of law that ensures stability and predictability between parties, in our circumstances investors and states. It is necessary to distinguish between contractual obligations and those that the host state has that are deriving from international law. This way makes it possible to determine which kind of expectations being breached the foreign investor may claim. Cases concerning these problematics are quite consistent in rulings and differentiate situations clearly.[11] Contractual expectations are namely protected under national law and as such, they can be claimed in front of a national court due to the contract breach, however cannot be seen as protected by a bilateral investment treaty (BIT) and claimed in an ISDS before an international arbitral tribunal. As is stated in Parkerings v. Lithuania case:

“It is evident that not every hope amounts to an expectation under international law. The expectation a party to an agreement may have of the regular fulfilment of the obligation by the other party is not necessarily an expectation protected by international law. In other words, contracts involve intrinsic expectations from each party that do not amount to expectations as understood in international law. Indeed, the party whose contractual expectations are frustrated should, under specific conditions, seek redress before a national tribunal.”[12]

On the other hand, contractual obligations deserve the utmost level of protection as it is the parties themselves who agreed to the terms set and committed to them. In the case of MTD v. Chile, the Chilean government body signed a contract with the investor approving their planned investment in building a city in an area supposed to be rezoned before the plans could proceed. Chilean authorities in charge of agriculture and rezoning areas however later, after the investment had been made, declined the process of rezoning to take place, on the grounds it would be in against the law. The Tribunal concluded that approval of an investment by the FIC (the Chilean Government body) for a project that was against the urban policy of the government was a breach of the FET obligation by Chile. [13] The expectations held by the claimant arose from a contractual obligation and were in this case reasonable.

Unilateral representation of the state

There have been cases in the past where the investor brought claims to an arbitral tribunal where the breach of legitimate expectations was based on a certain promise or assurance made by the host state which was then later changed, not fulfilled or simply ignored by the state’s administration. In this context, we are talking about promises made in another way than by a contract which was discussed above.

In some cases the legitimate expectations are based on specific assurances by the host state. They can be given either before the first step in the investment process or later on after the investment is made. If the investor relied on assurances given after the investment process has started and adjusted his following investment decisions, expectations that are worthy of international protection might have been created.

In the Metaclad v. Mexico case, the U.S. corporation received a permit from the Mexican government to build a hazardous landfill in Mexico. After the constructions began, the corporation received a notice that it was acting unlawfully without a municipal construction permit, which was denied after the corp. applied for it. In the meantime, an Ecological Decree was drafted and passed, proclaiming the area where the site was built as a protected natural zone. These actions by the host state were found to be in violation of the fair and equitable treatment, because the corporation legitimately expected to be granted a permit as previously assured by the government. The tribunal stated that:

“Metalclad was entitled to rely on the representations of federal officials and to believe that it was entitled to continue its construction of the landfill. In following the advice of these officials, and filing the municipal permit application
Metalclad was merely acting prudently and in the full expectation that the permit would be granted.”[14]

The Frontier Petroleum v. Czech Republic case was different. The claimant received two letters sent by the Czech Ministry of Industry and Trade, in which the Ministry implied that the state would have the possibility to enter into negotiations with the investor. The tribunal found this to be merely a “signal to Claimant that there was a possibility that the state could negotiate” and that the two letters “did not provide an adequate basis for the Claimant to rely on some form of representation or expectation.”[15]

State’s right to regulate and the right to a stable regulatory framework

Each state should be able to carry out its own legislative and executive power as a sovereign subject of international law. As stated by the tribunal in the previously mentioned Parkerings v. Lithuania case,

“It is each State’s undeniable right and privilege to exercise its sovereign legislative power. A State has the right to enact, modify or cancel a law at its own discretion. Save for the existence of an agreement, in the form of a stabilization clause or otherwise, there is nothing objectionable about the amendment brought to the regulatory framework existing at the time an investor made its investment.”[16]

“The “legitimate expectations” of the investor may be taken into account in the interpretation of the standard. However, this is possible only where clear, specific representations have been made by a Party to the agreement in order to convince the investor to make or maintain the investment and upon which the investor relied, and that were subsequently not respected by that Party. The intention is to make it clear that an investor cannot legitimately expect that the general regulatory and legal regime will not change.”[17]

The claims brought to tribunals concerning this kind of situation vary from case to case. Specifically, in some cases the dispute was settled in favour of the claimant, investor, and the state’s regulations thus repelled by this means, e.g. the LG&E v. Argentina case, where the “tribunal cited to the developing jurisprudence on the stability requirement as providing ‘an emerging standard of fair and equitable treatment in international law’. It found that, by violating or taking away the guarantees embodied in the relevant laws and regulations, Argentina ‘completely dismantled the very legal framework constructed to attract investors’”.[18] On the other hand, there have been situations, where the tribunal found a lack of reasonableness on the investor’s side which led to his claim being unjustifiable, for example in the already discussed Thunderbird v. Mexico case, where the tribunal, in my opinion rightly decided that “whatever standard is applied in the present case however–be it the broadest or the narrowest–the Tribunal does not find that the Oficio generated a legitimate expectation upon which EDM could reasonably rely in operating its machines in Mexico”.[19] Reasonableness is a key aspect of dealing with the right of regulation and the legitimate expectations of investors.

“The idea that legitimate expectations, and therefore FET, imply the stability of the legal and business framework, may not be correct if stated in an overly-broad and unqualified formulation. The FET might then mean the virtual freezing of the legal regulation of economic activities, in contrast with the State’s normal regulatory power and the evolutionary character of economic life. Except where specific promises or representations are made by the State to the investor, the latter may not rely on a bilateral investment treaty as a kind of insurance policy against the risk of any changes in the host State’s legal and economic framework. Such expectation would be neither legitimate nor reasonable.”[20]

Many other prospects have to be considered when determining whether a state is changing regulations necessarily due to important social, economic, environmental, demographic and other reasons or simply because they want to update their laws. Political characterization is also a viable justification of legal framework to change. Lithuania is one example, where the political structure, and together with it legal system, was transforming from previously soviet into democratic and more “western-European” model and where the tribunal bore this in mind and on the basis of this decided against the claimant. The investor should have been aware of the hardly unpredictable changes in law that might occur in the near future and considered the risk he was taking. The circumstances bestowed couldn’t have inclined a stable legal environment. Investing in the state anyway, the claimant chose to take a business risk and could have sought to protect his investment by including a stabilisation clause or other means into the investment agreement presented, hence securing his position with the unlikeliness of unwelcomed changes happening.[21]

Another illustration would be the Methanex v. USA. The claimant attempted to claim a breach of his legitimate expectations allegedly causing injuries when a ban of a usage of certain chemicals was imposed in California. The tribunal despite the claims declared the expectations as not being legitimate on the grounds that the investor entered a political environment where the use and impact of chemicals were monitored continuously by governmental environmental and health protection institutions at state and federal level and commonly prohibited or restricted for environmental or/and health reasons.[22]

It can surely be said that there are a number of reasons why a state may make amendments to legislature and to consider them when issuing an award, in contrast to blindly decide in favour of investors to protect their business from change.

Arbitration is a common and exceedingly used way to settle disputes between states and investors. Conclusion

The “legitimate expectations” doctrine functions as a protection of foreign investors against the host state to provide safe and secure place for investments. Even though it has no legal basis and isn’t usually explicitly mentioned in any treaties or agreements, it has become commonly known and accepted as part of the fair and equitable treatment standard. It can safeguard accords made by the parties so that the investors feel less at risk when deciding if to invest in a certain state or not. The host state is bound to uphold the deals made in an treaty or an agreement as well as make sure it doesn’t act in a way the other party couldn’t have foreseen and cause the investor damages or loss of profit due to such actions. The state needs to be careful when amending laws and regulations and not only those, which were guaranteed specifically in writing not to change. These securities were however, also in my opinion, considered in a very broad aspect in the past years which made it hard for number of states to carry out their legislative powers in the fashion they would wish to without being brought before an arbitral tribunal for the breach of legitimate expectations.

The tribunals frequently interpreted the doctrine in an extensive manner and decided in favour of the investors. This led to the question of what still is and what is no more reasonable, where to draw the line between legitimate and immoderate expectation and where the protection of foreign investors end and the state’s right to regulate its own legislature starts. It is important to determine if there were promises made by the host state before the investment initiated or after and the way. Contractual agreements sometimes evoke the breach of legitimate expectations but cannot be viewed as such casually without further investigation of the certain situation. Promises made by the state’s administrative system, the executive branch or any other officials have a similar outcome. The right to a stable regulatory framework is sometimes seen by the investor as the right of counting on the regulations not to change at all, especially when it would mean amendments not in their favour. The situation must however be assessed accordingly to the circumstances of each and every host state individually, including social, economic, environmental and demographic aspects, together with the overall development of the country. The investor’s own conduct also plays a role in the judgments of expectations being legitimate and reasonable or excessive. I believe it is the investor’s duty to analyse all the risk he is taking before investing in a foreign state and be prepared for sudden adjustments or revisions of the state’s legal framework, principally in developing countries, not to mention the responsibility of investors to be outright about what kind of business they are starting with all of the specifics in the open. Otherwise their expectations legitimate cannot be considered legitimate and protected under international law and the fair and equitable treatment standard as such. Nevertheless I am not stating that the state can amend any kind of law without taking into consideration the foreign investors active in its zone. It is the state’s obligation to stand by the promises they made, in which ever manner, to the greatest extent possible.

Due to the lack of legal or any kind of definition of the doctrine, it is up to the tribunals to decide about the legitimate expectations in each case by taking it all into account and thus balance the state’s right to regulate and the investors’ interests and prosperities.

[1] Article 31 of the Vienna Convention states that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at: https://www.refworld.org/docid/3ae6b3a10.html [accessed 12 December 2018].

Arbitration is a common and exceedingly used way to settle disputes between states and investors. Notes

[2] LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Award on 25 July 2007, para. 133.

[3] Response by a group of 120 academics, available at http://trade.ec.europa.eu/consultations-archive/isds/index.cfm?id=908631053251619314&type=2 [accessed 12 December 2018].

[4] Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award on 29 May, 2003.

[5] Potesta, M., Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept, in ICSID Review (May 2013), p. 13.

[6] Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award on 29 May, 2003, para. 154.

[7] Nothing if Not Critical for Investment Treaty Arbitration: Occidental, Eureko and Methanex, Arbitration International Journal, Volume 22, p. 28.

[8] Zeinab, A. Investor’s legitimate expectations and the interests of the host state in foreign investment, Asian Economic and Financial Review, 2014, 4(12):1906-1918, p. 1909.

[9] Ibid.

[10] International Thunderbird Gaming Corporation v. Mexico, NAFTA/UNCITRAL, Award on 26 January 2006, paras. 147-148.

[11] Potesta, M., Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept, in ICSID Review (May 2013), p. 17.

[12] Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, Award on 11 September

2007, para. 344.

[13] MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Chile, ICSID Case. No. ARB/01/7, Award on 25 May 2004, para. 163, 166.

[14] Metalclad Corp. v. Mexico, ICSID Case No. ARB(AF)/97/1, Award on 30 August 2000, para. 89.

[15] Frontier Petroleum Services Ltd v. Czech Republic, UNCITRAL/PCA, Final Award on 12 November 2010, paras. 76, 455, 465.

[16] Parkerings-Companiet AS v. Lithuania, ICSID Case No. ARB/05/08, Award on September 11, 2007, para. 332.

[17] Public Consultation on Modalities for Investment Protection and ISDS in TTIP, document by the European Commission, 2014, available at http://trade.ec.europa.eu/doclib/docs/2014/march/tradoc_152280.pdf [accessed 12 December 2018].

[18] Potesta, M., Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept, in ICSID Review (May 2013), p. 28-29. See LG&E Energy Corp et al. v. Argentina, ICSID Case No. ARB/02/1, Decision on Liability, 3 October 2006, para. 125.

[19] International Thunderbird Gaming Corporation v. Mexico, NAFTA/UNCITRAL, Award on 26 January 2006, paras. 147-148.

[20] EDF (Services) Limited v. Romania, ICSID Case No. ARB/05/13, Award on 8 October, 2009, para 217.

[21] Parkerings-Companiet AS v. Lithuania, ICSID Case No. ARB/05/08, Award on September 11, 2007, para. 335-336.

[22] Methanex Corporation v. USA, NAFTA/UNCITRAL, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, Part IV – Ch. D, para. 9.

January 2019 - Quick Consulting

Table of content

Introduction

Chapter I General Provisions

Chapter II Acquiring Attorney Quality

Section 1 Conditions for enrollment in law

Section 2 Acquiring Attorney Quality

Chapter III: The rights and duties of the lawyer

Section 1: Lawyers’ Rights

Section 2: Lawyers’ Duties

Chapter IV: Organizing the profession of lawyer

Chapter V: Judicial Assistance

Chapter VI: Disciplinary liability

Chapter VII: Conclusion and conclusions

 Vasilescu Florin

Introduction

Attorney-at-law was a noble occupation from the beginning. Aristocracy occupies high positions in various fields such as justice. Times have changed, but the solemnity, ethics and integrity of the lawyer have remained at high standards. The current law in Romania regulating lawyer status is Law 51/1995. Not all the rules in that law contain ideas of ethics or integrity. For example, there are many provisions that regulate: pensions, institutions, etc. within the bar.

Chapter I General Provisions

The first provision of the law of the lawyer’s statute in which an ethical idea is found is in art. 2, paragraph (5). The attorney has the right and duty to take all due diligence in order to achieve free access to justice, in exercising his right to a fair trial and within a reasonable time. It is free access to justice that should not be restricted to any individual. Even the greatest murderer is entitled to a fair trial. We must not exonerate to interpret that the offender must “escape”, but his rights must be defended, heard and not be sanctioned more than deserves . The lawyer must not delay the trial in any way for the proper functioning of justice.

Article 11 stipulates: except in cases expressly provided for by law, the lawyer is bound to keep professional secrecy with regard to any aspect of the case entrusted to him. Professional secrecy is important in any field. The client comes to the lawyer and tells him his problems based on a relationship of trust. If there is no confidence, and the client does not say all the details of the lawyer then the latter can no longer consolidate a good defense.

Chapter II Acquiring Attorney Quality

Section 1 Conditions for enrollment in law

Lawyers must be in a bar. Admission to the bar requires the fulfillment of conditions: to exercise civil and political rights; the license of a law faculty with the duration stipulated by law; is not in any of the cases of malpractice provided by this law; is medically fit for the exercise of the profession. Normally, a lawyer must have the capacity to exercise and study the right to exercise the profession.

Cases of lack of apprehension are: the person finally sentenced by a court order to imprisonment for committing an intentional offense, which would be detrimental to the prestige of the profession; the abuser who violated human rights and fundamental freedoms established by court order or committed serious disciplinary offenses punishable by the exclusion from the profession as a disciplinary sanction.

The person to whom the punishment of the prohibition to practice the profession was applied for, during the period established by a court or disciplinary decision; the person in charge of whom, on the basis of a final judgment or acts of the lawyer’s profession, has been dealt with the act of exercising or supporting, in any form whatsoever, the unreasonable exercise by a person of the profession of lawyer. All of the above listed cases are clear violations of the ethics and integrity of the lawyer’s profession that makes him unworthy of being a member of the bar.

They are regulated incompatible in the exercise of the lawyer’s profession, such as: paid work in professions other than lawyer; occupations damaging the dignity and independence of the profession of lawyer or good morals; the direct exercise of material material deeds. The image of a lawyer must be maintained at certain standards. It would not be worthy for a lawyer to be employed in another profession.

For example, what the image would have a lawyer who is: a salesman, a waiter or a bartender. But there are also cases of incompatibility, for example a lawyer to be a judge, trust in justice would be jeopardized. Instead, any activity that would denigrate the profession of lawyer should be suppressed. However, the lawyer’s activity is not incompatible with the activity of: senator, deputy, councilor in local or county councils, teacher in legal education or literary and publicistic activities. These activities have a strong connection with the profession of lawyer, and the banning of these activities could be an impediment to the lawyer’s career.

Lawyers entering the lawyer’s profession, that is, admitted to the bar after passing the exam organized by the National Institute for Advocacy Training, must do a two-year internship. The trainee lawyer is guided in his / her activity only by permanent lawyers who have a reputed professional reputation and have been at least six years old in that capacity. The age of six years is calculated from the completion. Normally, a supervisor must have a certain exequency to be able to form a young man to his career career. The mentor’s lawyer must be a good one to inspire ethical and moral ideas for the trainee. If the Defendant Advocate has a wrong training in practicing the profession, he will forward his / her skills to the new entrants.

Section 2 Termination and Suspension of Advocate

Lawyer’s status ceases: by written renunciation of the profession; due to death; if the measure of exclusion from the profession was taken against the lawyer as a disciplinary sanction; if the lawyer was finally convicted of an act under the criminal law and renders him unworthy of being a lawyer, according to the law. Normally, any individual can quit his or her attorney’s position if he no longer wants to practice, we can equate his resignation with other areas of activity.

The cause of death is a simple reason given that a deceased person can no longer carry out activities. The lawyer may be excluded from the bar following the violation of disciplinary rules or a serious violation of the law that makes him / her unworthy leading to his / her exclusion from the profession of lawyer. We can endlessly debate why a lawman must be himself a model in society from a disciplinary point of view. But I will confine myself to saying that the integrity of the lawyer’s profession must be protected and that access to this profession of worthy persons is ensured.

Normally, the lawyer may be suspended: in case of incompatibility, during the existence of this state; during the period of interdiction to practice, ordered by judicial or disciplinary decision; in the event of total or partial non-payment of contributions and professional fees to the bar, to U.N.BR. and to their own social security system, for three months from their maturity and until full liquidation of debts; at the request of the lawyer.

In these cases, the exclusion from the lawyer’s profession would have been a much too drastic sanction. During the incompatibility, the lawyer can only be suspended with the possibility to return to his profession anytime. There is a possibility of a court or disciplinary decision whereby the lawyer is only suspended for a certain period of time, or fails to pay his obligations for three months. The lawyer has the power to ask for his suspension from the profession of lawyer for certain periods.

Chapter III: The rights and duties of the lawyer

Section 1: Lawyers’ Rights

The lawyer has the right to assist and represent any legal or physical person under a contract of assistance. In this contract both the lawyer and the client have the right to waive the expenses incurred by the lawyer and the payment of the fee for the work done. The fees are set by each lawyer the only condition is not to fall below the minimum bar set by the bar. Fees may also be paid in a bank account of the lawyer’s form of organization.

The lawyer’s contract is enforceable. Competence lies with the court in the district where the lawyer has his lawyer. Insurance and seniority systems are separate for lawyers.

In order to ensure professional secrecy, the lawyer’s office is inviolable with all his papers and papers. It is not allowed to search at the headquarters, the attorney’s demy by the prosecutor on the basis of a mandate issued under the law. It is not allowed to lift communications between the client and the lawyer, or the documents on the basis of which the defense of the officer was made. Recording between client and lawyer is also prohibitive. The contract between the client and the lawyer can not be controlled by state bodies. If the client is in arrest, the administration of the detention facility has the obligation to take the necessary measures to respect the rights explained above.

Lawyers are partners of indispensable justice protected and recognized by law. It is not allowed during the hearing that the lawyer distorts the solemnity of the court hearing or uses inappropriate language, offensive to the judge or other participant in the trial. Normally, the behavior of a lawyer must be superior to any person entering a courtroom. Like a deputy who can not come dressed sport in a parliamentary session and begin to disrupt the meeting using a licensed language because he is the image of an institution. The lawyer at the time of the robber wearing and the signs of the bar is the image of an institution and must behave with respect to the job he is exercising. It spoils the institution’s image and other colleagues, people can think that if lawyers do not behave properly, why should they have proper behavior ?!

It does not constitute a disciplinary offense if the lawyer assumes a certain legal opinion or formulates his defense as long as he is in the legal parameters.

Section 2: Lawyers’ Duties

The lawyer must investigate every case that takes him either as a client or case ex officio. He must make every effort to defend the rights of the person he represents. But it is not allowed to give advice for the purpose of violating the law. Clearly, the law of the lawyer orders the lawyer to withdraw from assisting the client, who initially seemed legitimate to take an illegal turn.

In the profession, the lawyer is obliged to take the cases out of court or free of charge by the bar. Anyone who may be wrong at work, but the lawyer must be insured for malpractice to cover eventual damage.

Being part of an organization like a bar, the lawyer is required to attend all meetings and conventions of the governing bodies. Absence of undue repetition is a disciplinary offense.

The records that the attorney has to keep as a result of his activity are as important as the timely transfer of money to the bar.

Never can a lawyer be witnessed in a cause given to him only with the consent of all interested clients. Trust in lawyer would be affected and people would avoid appealing to lawyer. But the quality of witness is a priority over the lawyer in circumstances where the lawyer has learned to be hired as an advocate. Disclosing information in a case is a crime and is punishable by one to five years imprisonment.

The lawyer who has not disclosed the offenses of which he is aware in the exercise of the profession is not incriminated for negligence, with the exception of: murder, killing or other crime that resulted in the death of a person; genocide, crimes against humanity, or war crimes against people; offenses related to the prevention and combating of terrorism. In all cases, the lawyer who prevents the offense from committing the offense or its consequences other than denouncing the perpetrator is exonerated from liability.

It is incompatible that the lawyer who is the defender of a party is an expert or a translator. Normally, one person can not have more roles in a lawsuit because it would jeopardize the veracity of justice and the credibility of a fair and equitable process.

In front of the courts, the lawyer must wear the robe. Apart from certain events where the robe is bound to wear, its use is strictly forbidden.

Any public statement must respect the integrity and dignity of the lawyer’s profession in accordance with the law of the lawyer’s statute. All these aspects form the image of the lawyer.

 Chapter IV: Organizing the profession of lawyer

The profession of lawyer is organized and operates on the basis of self-employed profession within the bar. Election of organs is made by secret ballot. The budget of the bar is made up of the contributions of lawyers who are established by the bar council. The governing bodies are: the general assembly, the council and the dean.

The governing bodies of U.N.BR. are: lawyers’ congress; U.N.B.R. Council; permanent commission of U.N.BR .; the President of U.N.BR. In U.N.B.R. the Central Audit Commission is established and functioning; the central committee of discipline; the technical-administrative apparatus.

Chapter V: Judicial Assistance

The Bar provides legal assistance in the following cases: criminal defense where it is mandatory in other criminal cases where public judicial assistance is necessary and in cases where legal assistance is required by the local public administration bodies. The Dean will appoint a lawyer who will only be able to refuse in the case of a conflict of interest. The solicitor of the public judicial assistance must prove the material state.

A request for public judicial assistance is made, within 15 days, the dean solves it with the possibility of approving the lawyer requested by the person who made the request or the choice of another lawyer. The decision to reject the application may be appealed in five days. The lawyer chosen is not allowed to receive any remuneration or compensation from the client.

 Chapter VI: Disciplinary liability

Any lawyer shall be disciplined if he does not respect the law of the lawyer, or the mandatory decisions of the bar, and for any act committed in connection with the profession or outside of the profession by prejudicing the honor and prestige of the profession.

They have the obligation, lawyers, to notice any observed deviation. Any act that is so qualified in the lawyer’s statute or any other law enters into serious disciplinary offense.

The Bar Council has the competence to investigate deviation and to exercise disciplinary action. The dean of the bar is investigated by the UNBR Council. The disciplinary sanctions are: rebuke, warning, fine, prohibition to exercise the profession from one month to one year and exclusion from the profession.

Chapter VII: Conclusion

I can practice as a lawyer in Romania citizens who have obtained this qualification in a member state of the European Union, the condition is that they have to become members of a Romanian bar and respect the law of Romanian lawyer. They must comply with the legal, moral and ethical norms of our country.

Lawyer has been a noble and respectable profession since ancient times. The honesty with which to practice this profession is high. A law man must be a model and an example for the rest of the people. Ethics and integrity in the profession of lawyer are sacred elements that define the nobility in which this profession was planted.

January 2019 - Quick Consulting

Table of  contents

Table of  contents

Introduction

I. History & brief summary

II. Public policy rules

III. Benefits &utility

IV. Disadvantages

V. Conclusions

Introduction Romanian public policy rules on arbitrability of disputes

The main questions to which this paper work will answer: What are the rules of public order? What is the role of public order rules? What is the usefulness of public order rules in arbitration?

In this essay, titled “Romanian public policy rules on arbitrability of disputes”, will be developd several theories based on the opinions of several jurists passing through my own filter of my thinking. I want to compare opinions between them, to criticize them and finally to present the opinion I have accepted, or to express my own opinion. I will motivate the choice made by explaining why and examples.

In this paper work will be presented some speeches settled by the Romanian Courts or the Arbitration Court to support the ideas. The jurisprudence of the arbitration courts is not public but will be used speeches written on certain forums and speeches within a law firm.

Rules of public order in arbitration proceedings are of particular importance. Subject to observance of public order and good morals, as well as mandatory provisions of the law, the parties may establish by arbitration agreement or written instrument subsequently concluded, at the latest with the arbitral tribunal being established, either directly or by reference to a specific regulation on arbitration, the rules on arbitration, the appointment, removal and replacement of arbitrators, the term and place of arbitration, the rules of procedure to be followed by the arbitral tribunal the settlement of the dispute, including any prior dispute settlement procedures, the allocation of arbitration costs between the parties and, in general, any other rules on the proper conduct of arbitration. That is, by convention, the arbitration clause, the parties may derogate from the general rules as long as they do not violate any public policy norm.

The article analyzes relevant legislation and practices in Romania and contrasts the approaches of common law jurisdictions to these issues. This paper discusses the possibility of arbitration to resolve corporate disputes, including litigation arising out of shareholder agreements.

At this time, the transfer of corporate litigation to arbitration in Romania involves substantial risks for participants in these litigations. In many cases, the Romanian state commercial courts consider that corporate litigation is not “arbitrary”, because state commercial courts have exclusive jurisdiction over such disputes.

In the case of common law jurisdictions, by contrast, corporate litigation (in particular litigation arising out of shareholder agreements) may be submitted to arbitration and may be judged in accordance with a foreign law as chosen by the parties. Only in a few cases will the jurisdiction of the arbitral tribunals be denied and the dispute settlement clauses and applicable law provisions will not be taken into account: according to the civil procedure code, the only way to appeal the arbitral award is the action for annulment to be introduced in a few cases which also violates the rules of public order.

The arbitral award may only be terminated by an action for annulment for one of the following reasons:

1. a) the dispute was not likely to be settled by arbitration;
2. b) the arbitral tribunal resolved the dispute without the existence of an arbitration agreement or under a null or inoperative agreement;
3. c) the arbitral tribunal has not been constituted in accordance with the arbitration agreement;
4. d) the party was deprived of the time at which the debates were held and the citation procedure was not legally fulfilled;
5. e) the award was pronounced after the expiry of the term of the arbitration stipulated in art. 567, although at least one of the parties stated that it understood to invoke the caducity and the parties did not agree with the continuation of the trial, according to art. 568 par. (1) and (2);
6. f) the arbitral tribunal has ruled on things that have not been requested or given more than was requested;
7. g) the arbitral award does not include the device and the reasons, it does not show the date and place of the ruling or is not signed by the arbitrators;
8. h) the arbitral award violates public policy, good morals or mandatory provisions of the law;
9. i) if, after the arbitration award has been handed down, the Constitutional Court has ruled on the exception raised in that case, declaring unconstitutional the law, ordinance or provision of a law or ordinance which was the subject of that exception or other provisions of the contested act, which, necessarily and obviously, can not be dissociated from the provisions mentioned in the referral.

The actions for annulment are tried in court and can be found on the portal site just. These speeches will be used to demonstrate that non-compliance with public order rules in arbitration entails the annulment of award.

I. History & brief summary

Arbitration is an alternative to private jurisdiction. In organizing this process, the parties may lay down derogatory rules from common law, provided they are not contrary to public policy rules and mood rules.

Persons with full capacity can establish conventions to resolve disputes between them through arbitration. Such conventions can not be concluded for conflicts concerning: the civil status, the capacity of persons, the succession debate, the family relations, as well as the rights that the parties can not dispose of.

The state and state authorities may conclude arbitration conventions if they are authorized by law. State-owned legal entities having as their object economic activities may conclude such conventions unless otherwise provided by law or by the act of incorporation.

Arbitration in all aspects: the arbitral tribunal, the arbitrators, the arbitral tribunal, etc. shall be established by the arbitration agreement or according to the rules of the competent legal system.

These ideas have been extracted from the New Civil Procedure Code.

Advantages of arbitrage: speedy, international recognition of awards, confidentiality, procedural flexibility, arbitrariness of parties, neutrality, costs are lower for simple arbitrations and the possibility of settling the dispute in equity and / or according to commercial usage. Arbitral awards are not public, nor do processes so large companies do not pardon their reputation with certain processes. Traders who want to resolve a litigation as quickly as possible (mostly large amounts of money) have the interest that the court procedure lasts as little as possible. An arbitration process shall not last more than one year, including prior procedures,

Disadvantages of arbitrage: waiver of state authority, limiting the reasons for the dissolution of a judgment, excessive judiciary or high costs for complex arbitrations. Once state jurisdiction is called for, it is excluded. In very few cases (breach of public order rules in general) arbitration awards can be challenged. At first the costs of the arbitration were much lower, but the development of this branch increased the costs. C.M.H. is one of the lawyers who guides his clients to arbitration, but after losing a lawsuit due to an arbitration court error (they declared the non-existence of a document actually in the file), he gave up this path. In this case, the arbitral award could not be challenged. Another disadvantage is the credibility and impartiality of the referees. The parties have to choose an arbitration panel to trust. The judges strive to demonstrate their impartiality to encourage people to turn to their services (being a private service).

In the Old Code of Procedure commented and annotated by G. Boroi the arbitration of art 340 was regulated, and in the new code of Art 541. Other differences apart from the structure and re-expression of the ideas of the old code, the new code does not bring any significant news what should mentioned.

The current arbitration chapter of the Civil Procedure Code is aligned with: European Union law, the ICC rules and UNCITRAL Model Law.

II.Public policy rules

The public order is aimed at organizing the company, so arbitration must not affect the laws governing this organization. The arbitrators are directly responsible for observing fundamental principles such as equality and contradictory. The imperative rules to be observed are not only those of the Civil Procedure Code but all the norms, including those of the special laws.

Some examples of mandatory rules: those relating to the scope of arbitration, participants in the arbitration process or procedural principles, the rules of material jurisdiction of the courts of law notified to verify the arbitrary activity and the rules on the abolition of arbitral awards.

If you have an arbitrary convention, you can no longer address the courts. If a request is made to the court, for example, the judge will decline jurisdiction to the Arbitral Tribunal.

From their own experience, having an arbitration case, I can say about the National Health House that it concludes arbitration conventions in contracts with healthcare providers. My client CM DR BAM has previously tried to address himself to the courts. He did not trust the CNAS Arbitration Commission because it is made up of 3 members called CNAS and 3 members appointed by the college of doctors. Below we have the court solution:

Section: SECTION OF ADMINISTRATIVE AND FISCAL CONTENTS

Subject matter: Administrative and fiscal dispute

Subject: annulment of administrative act 42151 / 28.07.2017

Processual stage: Fund

Part

CM DR BAM Petent

HEALTH INSURANCE HOUSE WORK INCOME

Complete: C9NCA

Solution type: Decline case resolution

Solution in Brief: Admits the exception of material incompetence. Decline jurisdiction in favor of the Arbitration Commission of CNAS.

Document: Decision 2220/2017 31.10.2017

CASMB demanded a refund in 2013 because it was transferred without being covered by a contract at that time. From the CASMB practice at the beginning of each year, no contracts were concluded, but at the supplier’s request they agreed to provide medical services after signing the contract in March, April with January 1 thus becoming legally.

During the arbitration process we proved that CASMB was not mistaken at the time of payment, the service was provided and the payment was due. My client was in a situation of subordination and could not decide the moment of signing the contract and provided the service under a simple agreement between him and the CASMB.

The parties are free to choose the way of arbitration, the tribunal and the arbitrators can not be bound by any aspect, but when they have agreed to choose the way of arbitration, they are obliged to respect the arbitral award.

If one of the parties does not wish to comply with the arbitrarily arbitrary award, enforcement may be carried out. As an example I found the following:

Section: Civil Section

Subject matter: Civil

Subject: Enforcement of enforcement force JUDGMENT 16/2016

Processual stage: Fund

Part

Name Quality part

BTS petitioners

AS SRL Debitor

Meeting

Complete: C27 IES

Solution type: Admits the request

Solution in Brief: Admits the request for enforcement of forced execution formulated by B.E.J. “TS”. Approves simultaneous / successive forced execution, in all manner prescribed by law, of the enforceable title represented by the arbitral award no. 16 / 10.11.2016, pronounced by the Court of Commercial Arbitration attached to the Chamber of Commerce, Industry and Agriculture Galati, file no. 16/2016 at the request of the creditor S.C. CM AND DISTRIBUTION S.R.L., against the debtor S.C. AS S.R.L., for the obligations resulting from the said enforcement title. Authorizes the creditor to enforce forced execution of the obligations contained in that enforceable title. No way to appeal. Pronounced in public sitting, today, 19.12.2016.

Document: Closure – forced execution 10128/2016 19.12.2016

Individuals or individuals who use arbitration must have full exercise capacity (as in court processes). Exclusively non-patrimonial disputes are excluded, the most common use of arbitration is for litigation of traders. Certain commercial litigations are expressly given in arbitrary jurisdiction.

One party may address the court in respect of any obstacle that may arise in the organization and conduct of arbitration. The activity of arbitration is monitored by the Tribunal.

The arbitral convention must be concluded in writing under the condition of absolute nullity.

The term of the arbitration term is strictly regulated at six months with the possibility of suspension and extension of maximum three months in the situations stipulated by the law, under sanction of the arbitrariness of the arbitration.

The judgment of the arbitration on: the fundamental principles of the civil process and the rules of procedure are the same as those of the courts of law.

The arbitrary procedure approaches the judicial one by manifesting the legislator’s wish to take over the fundamental principles of the civil process. In the chapter on arbitration, reference is made to Article 575 of the New Code of Civil Procedure expressly indicating:

(1) The arbitral tribunal shall be conducted in accordance with the procedural rules set out in art. 576 – Applicable Rules of Procedure (1) The parties may set arbitration rules in the arbitration agreement or may instruct the arbitrators to lay down these rules. These rules shall be supplemented, where appropriate, by the provisions of this book.

(2) When the parties resort to institutionalized arbitration, the provisions of art. 619 paragraph (3). (Unless otherwise agreed by the parties, the rules of the institutionalized arbitration procedure in force at the time of the referral shall apply.)

(3) In all other cases, the arbitration procedure shall be the one set out in this book.

Art. 576 (2) However, the fundamental principles of the civil process set out in art. 5 par. (2), art. 8-10, art. 12-16, art. 19-21, art. 22 par. (1), (2), (4), (5) and (6) and in art. 23 are also applicable in the arbitration procedure.

Article 5 (2) which requires the judge to judge whether the law is unclear or incomplete, and in Article 601 of the Arbitration Judgment chapter, Art. 5 is taken up in its entirety; the settlement of the dispute is settled under the contract of the applicable law in accordance with the provisions of Article 5 – Obligations to Receive and Solve the Applications

(1) Judges are required to receive and settle any request for jurisdiction by the courts, according to the law.

(2) No judge may refuse to judge on the grounds that the law does not provide, is unclear or incomplete.

(3) If a cause can not be resolved either by law or by custom, and in the absence of the latter, nor by the legal provisions relating to similar situations, it shall be judged on the basis of the general principles of law, taking into account all its circumstances and taking into account the requirements of equity.

(4) It is forbidden for the judge to establish general binding provisions by the judgments he makes in the cases before him.

Article 8 – Equality In the civil process, parties are guaranteed the exercise of procedural rights, on an equal and non-discriminatory basis. This principle of equality is imposed in the branches of law of: European Union law, Treaties and Constitution.

Article 9 – Right of disposal of the parties

(1) Civil proceedings may be initiated at the request of the person concerned or, in the cases specifically provided by law, at the request of another person, organization or public authority or institution or public interest.

2. The subject matter and the limits of the proceedings shall be determined by the parties’ requests and defense.

(3) Under the terms of the law, the party may, as the case may be, waive the judgment of the request for legal action or the right itself, may recognize the claims of the adverse party, may agree to terminate, in whole or in part, , may waive appeals or enforce a judgment. The Party may also enjoy its rights in any other manner permitted by law.

This right was indisputable because, in my opinion, it expresses the limits and conditions of a process from which the parties can not be allowed to deviate. The parties have a right of action on the action they are doing: to do, not to do, to give up any interested person to intervene in the case.

Article 10 – Obligations of the parties in the process

(1) The parties have the obligation to perform the procedural acts under the conditions, order and deadlines established by the law or by the judge, to prove their claims and defense, to contribute to the process without delay, and also to complete it.

2. If a party has evidence, the judge may, at the request of the other party or of his own motion, order his appearance, subject to the payment of a judicial fine.

The smooth running of the process depends on the procedural parties that sometimes are tempted to delay the trial. Especially in arbitration, where there is a deadline for solving the process, it was necessary to impose art.10 of the NCPC, which sanctions the actions of delaying the process.

Article 12 – Good faith

(1) The procedural rights must be exercised in good faith, according to the purpose for which they were recognized by law and without infringing the procedural rights of another party.

(2) The party exercising its procedural rights in an abusive manner is liable for the material and moral damages caused. She may also be required, under the law, to pay a fine.

(3) Also, the party who fails to fulfill his procedural obligations in good faith according to par. (2).

As any right and procedural rights must be exercised in good faith. Your freedom ends where the freedom of your neighbor begins, any excess or bad faith can create unlawful benefits to one party.

Article 13 – Right to defense

(1) The right of defense is guaranteed.

(2) The parties have the right throughout the process to be represented or, as the case may be, assisted under the law. In the appeal, the claims and conclusions of the parties can only be formulated and supported by a lawyer or, as the case may be, a legal counsel, unless the party or the trustee, a spouse or relative up to the second degree included, is licensed in law.

(3) Parties shall be given the opportunity to participate in all stages of the process. They can get acquainted with the file, submit evidence, defend, present their written and oral submissions, and exercise legal remedies, in accordance with the law.

(4) The court may order the parties to appear in person, even when they are represented.

The right to defense is a right that is found in the Constitution and must be guaranteed. In situations of inferiority where a small trader contracts with a larger trader, there could have been abuses of clauses prohibiting the hiring of a representative. Thus the legislator provided in arbitration the right to defense.
Article 14 – Contradictory

(1) The court may decide on an application only after the citation or appearance of the parties, unless the law provides otherwise.

2. The parties shall make known to each other and in due time, directly or through the courts, as the case may be, the factual and legal grounds on which their claims and defense are based, as well as the means of proof which they use to be used, so that each of them can organize their defense.

(3) The parties have the obligation to state the factual situation to which their claims and defense relate in a correct and complete manner, without distorting or omitting the facts which are known to them. The parties have an obligation to set out their own point of view regarding the relevant party’s allegations concerning the relevant facts of the case.

(4) The parties have the right to discuss and argue any matter of fact or law invoked during the trial by any participant in the process, including by the court of its own motion.

(5) The court is obliged, in any proceedings, to submit to the parties’ discussion all the applications, the exceptions and the factual or legal circumstances invoked.

(6) The court shall base its decision only on factual and legal grounds, on explanations or on evidence which have been subject to the contradictory debate in advance.

Article 15 – Oralities

Proceedings shall be debated orally, unless the law otherwise provides, or where the parties expressly request the court to proceed only on the basis of the documents submitted to the file.

These are mandatory benchmarks from which the parties can not derogate. If we resume 544 paragraph (2) stating that the parties may derogate by convention from the rules of the process after we have analyzed all the imperative rules from which the parties can not derogate, we will find that the freedom of the parties is insignificant.

Article 16 – Disregard

Samples shall be administered by the court hearing the case, unless the law determines otherwise.

Article 19 – Continuity

The judge in charge of dealing with the case can not be replaced during the trial but for good reasons, under the law.

Article 20 – Respect for fundamental principles

The judge has the duty to ensure compliance and to observe the basic principles of the civil process under the sanctions provided by law.

Article 21 – The attempt to reconcile the parties

(1) The judge shall recommend to the parties amicable settlement of the dispute through mediation, according to the special law.

(2) Throughout the trial, the judge will try to reconcile the parties by giving them the necessary instructions, according to the law.

Article 22 – The Judge’s Role in Finding the Truth

(1) The judge shall settle the dispute in accordance with the applicable rules of law.

(2) The judge has the duty to enforce, by all legal means, to prevent any mistakes in finding the truth in question, on the basis of establishing the facts and by the correct application of the law, in order to give a sound and lawful decision. To that end, with regard to the facts and the grounds of the law invoked by the parties, the judge is entitled to ask them to provide oral or written explanations to discuss any factual or legal circumstances, if not mentioned in the application or in the pleadings, to order the administration of the evidence they consider necessary, as well as other measures provided by the law, even if the parties oppose it.

(4) The judge gives or restores the legal classification of the acts and facts inferred from the judgment, even if the parties have given them another name. In this case, the judge is obliged to bring the exact legal qualification to the parties.

(5) However, the judge may not change the name or legal basis if the parties, by virtue of an express agreement on rights which they may, according to the law, order, have established the legal qualification and the legal grounds on which they have agreed to restrict the debate if this does not violate the legitimate rights or interests of others.

(6) The judge shall decide on everything that has been requested, but without exceeding the limits of the investment, unless the law otherwise provides.

Article 23 – Respect for justice

(1) Those present at the hearing shall be obliged to show due respect to the court and not disturb the proper conduct of the trial.

(2) The President shall ensure that the order and the solemnity of the meeting are observed, and may take any measures provided for by law.

Infringement of these provisions may lead to the termination of the arbitral award under Article 608 (1) (h)

These are rules of public order in arbitration indispensable to any form of justice on which the right to a fair trial is based. The legislator ensured compliance with these rules, including the sanction of the annulment of the arbitral award at the General Court. We can not imagine a fair trial without one of the rules listed above.

From the course of Camelia Toader I extract some ideas for this essay about UE law in arbitration:

CJUE has also developed a concept of public policy on norms of EU law, holding that certain of those norms are so essential to the EU itself, that where a Member State allows its courts to apply one relating to domestic public policy. It must also apply one relating to EU public policy under the “principle of effectiveness” of EU law. The CJEU has explicitly applied this notion in the context of the enforcement of the arbitral awards.

In Eco Swiss case law (C-129/97) the CJUE held that certain rules of EU competition law constitute part of the public policy of the EU, and consequently that an award which violates EU competition law can be annulled or refused enforcement on that basis.

In Mostaza Clara (C-168/05) the CJUE held that a national court seized of an action for the annulment of an arbitration award involving a consumer must determine whether the arbitration agreement constituted “unfair term” under Council Directive 93/13/EEC of Unfair Terms in Consumer Contracts, even if this objection was never raised by the consumer in the arbitration, and annul the award if it did.

Under Article V(2)(b) of the New York Convention, public policy is one of the limited grounds on which courts asked to enforce an arbitration award may refuse to do so.

When the public policy exception was included in the New York Convention, there were concerns that it would be used by courts around the world to reject enforcement of any award that contradicted domestic policy norms in some way. Overwhelmingly, however, courts have interpreted the exception narrowly, and in the light of the pro-enforcement bias of the New York Convention, rejecting the view that the public policy exception applies whenever an award is inconsistent with domestic law. Rather, Article V(2)(b) is applied where the policy violated was one recognised as fundamental to international commerce, to due process and a fair trial, or tot he most fundamental norms of the State in which enforcement is sought. Thus, to be annulled, the award has to offend or contradict a norm of the legal system that is deeply rooted in the most fundamental values or notions of justice and morality of society.

III. Benefits &utility

The character of the arbitration tribunal’s private order should not be seen as a chance of avoiding the courts of law (the coercive power of the state). Arbitrary trials are different because of the parties’ ability to change the way they are organized by convention, but not on the fundamental elements.

Law subjects are protected by public order rules. They are free from any abuse that arbitrators may exercise.

The role of these rules is to ensure a uniform structure for the arbitration procedure.

The fact that arbitration is controlled by the Tribunal at the request of the interested party provides a trustworthy dose to those who make use of this form of litigation.

If any party could demonstrate the existence of the arbitration agreement by any means of proof, it would result in a chaos in practice that would arise in determining the jurisdiction of the Arbitral Tribunal.

Any clause giving a privilege to one of the parties with regard to the appointment of arbitrators, the right to appoint more than one arbitrator or to designate arbitrators in place of the other. This rule excludes the obvious possibility of a party to defeat the arbitrariness of the arbitrators and to attract its arbitral tribunal.

One of the advantages of arbitration is its speed and the fact that things go much faster than in normal courts. This is guaranteed by Article 567 of the Civil Procedure Code, which sanctions the exceeding of the six month period plus three months of extension in certain situations with its caducity.

Arbitration as a component of justice must confer on subjects of law whether or not the ideal of “justice” at least “fair”. Thus the balance of society is maintained.

IV. Disadvantages

The disadvantages of mandatory public policy rules and imperative norms are insignificant compared to the advantages they offer.

There may be a possibility for two Contracting Parties to want to exclude defense through a representative in the case of a dispute. The two may be interested in solving their disputes by personally speaking to the referees. Practically in situations of subordination, in particular, it could be abused, and the right to defense would be violated.

Sometimes, due to negligence, the parties may forget to sign the arbitration agreement in writing. They really want to conclude at the beginning, but when a litigation occurs, the interested party can take the imperative rule of law that the arbitrary convention is null if it does not have the written form.

The nullity of the clause conferring advantages on appointing the arbitrators of one of the parties is necessary to ensure impartiality and credibility by protecting the right to a fair trial.

Sometimes debating a trial takes time, and the rule by which arbitration becomes obsolete in overcoming the term prescribed by the Civil Procedure Code may force arbitrators to hurry up a case by omitting certain things or to negligently decide in a hurry. There are cases in which the arbitrators did not take into account certain evidence or did not understand the case and gave an erroneous award (I think they were probably pressured by time).

The parties’ freedom to organize the arbitration process is a false representation of reality, because according to the public order we analyze, we find that the parties do not have as much to regulate as they please.

V. Conclusions

Even if it is a private jurisdiction, certain values are guaranteed by the state. By public order rules, a minimum of protection against abuse is guaranteed. Like any man’s creation, arbitration has its advantages and disadvantages. I believe that in law, any law, principle or even system can be circumvented and the most important factor is their application in good faith by the subjects of law. But if everyone respected the laws and applied them in good faith, there would be no need for sanctions.

Arbitration of a private nature can be seen from two perspectives:

First of all we can consider a private service, the referee will want to get maximum satisfaction from both parties demonstrating certain qualities with a higher degree of involvement. The Referee has the interest that his current clients recommend him / her further and eventually appeal to his / her services. Instead, the judge is not affected if the parties will or may not appeal to the court.

Secondly, the judge has a “presumed” impartiality in people’s minds, and yet often the one who loses the trial, not accepting the situation that he is not right, accuses the judge of himself or his close associates of corruption. The referees have this well-known issue of credibility and impartiality, and the loser has more beliefs than ever that arbitration has been arranged.

Finally, we conclude with a final conclusion by resuming a paragraph of this essay. Arbitration as a component of justice must confer on subjects of law whether or not the ideal of “justice” at least “fair”. Thus the balance of society is maintained.