ARBITRABILITATEA LITIGIILOR IZVORÂTE DIN CONTRACTE ADMINISTRATIVE
THE ARBITRABILITY OF DISPUTES ARISING OUT OF OR IN CONNECTION WITH ADMINISTRATIVE CONTRACTS

Summary/Abstract: This study starts from the controversial doctrinal and jurisprudential controversy generated by the arbitrability of administrative contracts, especially of those of public procurement, with regard to national arbitration. Since the determination of the appurtenance of the institution of commercial arbitration and of its links to the other branches of law allows for greater precision in outlining the concept of arbitration and its scope, after the “positioning of commercial arbitration within the Romanian legal system” our attention must focus on the interpretation of the provisions of article 542 of the Code of Civil Procedure and of article 1112 of the Code of Civil Procedure, regarding the distinction between objective arbitrability (conditioned by the patrimonial nature of the dispute and by the tradable nature of the parties' rights) and, respectively, subjective arbitrability (related to the capacity of the legal entities of public law to conclude arbitration conventions). After making the due distinction between international arbitration (for which the unanimous opinion, based on the provisions of article 2.1 of the 1961 European Convention on International Trade Arbitration at Geneva, was that of accepting the arbitrability of litigations arising from administrative contracts) and national arbitration, the analysis, made by reference to the succession over time of normative acts governing the matter, of doctrinal approaches and of judicial practice, arrives at the conclusion that there is a need for a nuanced approach to the arbitrability/ non-arbitrability of litigations arising from administrative contracts, depending on their typology.

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