REFLECTIONS ON THE APPLICATION OF THE PRINCIPLE OF AVAILABILITY IN THE ORDINARY CIVIL PROCEDURE AND THE ARBITRATION PROCEDURE
REFLECTIONS ON THE APPLICATION OF THE PRINCIPLE OF AVAILABILITY IN THE ORDINARY CIVIL PROCEDURE AND THE ARBITRATION PROCEDURE

Summary/Abstract: is a principle applicable especially to the private law, while the public law is characterized by the principle of official. Both the ordinary law procedure and the arbitration procedure fall within the scope of private law, since they are subject to the proper application of the principle of availability. By availability is meant the possibility provided by the law to the parties to notify the judicial body, namely the court or the arbitral tribunal, to dispose of the subject matter of the dispute and the means of defense. Availability, from a methodological point of view, can be divided into categories, "in our specialized literature it was stressed that availability can be material or procedural." Analyzing the two categories of availability, we state that in the case of material availability we are talking about a possibility for the parties to dispose of the subject matter of the dispute, and in the case of procedural availability we are in the presence of a willingness regarding procedural defense means. From the point of view of the content of the right to availability, the arbitration process does is not in any way different from the civil process under the common law procedure except in various aspects However, the arbitration procedure provides, in particulary, regarding the principle of availability. This particularity is constituted by the provisions of art. 576, Civil procedure code. Unlike the common law where the Civil procedure Code governs the rules applicable to the settlement of a dispute, by virtue of the application of the code article. In the arbitration proceedings, the parties may, through the arbitration agreement, lay down procedural rules for the conduct of proceedings, in the context of a dispute or even at the time of the dispute, the parties may empower the arbitrators to lay down rules derogating from to the joint procedure. Another exception is the application of the rules of specialized arbitration institutions where the arbitration agreement has established that disputes should be settled by a particular arbitration institution. Here is how the principle of availability tends to be absolute, to the common law where there is a slight attenuated absolutism. We rely on the fact that the actual settlement of the arbitration litigation is governed by the rules of procedure established, first of all, by the parties.

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