Formalism şi libertate în materie de convenţii de arbitraj

Conf. univ. dr. Elena Alina OPREA

Facultatea de Drept, Universitatea "Babeş-Bolyai" Cluj-Napoca

ABSTRACT

Arbitration is quintessentially a product of party autonomy, the arbitration agreements reflecting the parties’ willingness to use this method to solve their disputes. For their validity, the legislation imposes not only substantial requirements (such as those related to the full capacity of the parties, to the free and untainted consent or compliance with the limits of arbitrability), but also formal requirements. More precisely, the arbitration agreement must be assumed in writing, a concept that imposes a series of clarifications. Considering the evolution of contracting techniques, the compliance with the requirement of “written form" may prove problematic in the case of so-called arbitration agreements by reference - those agreements that are not found in the signed contract, but in an external document, which at least one...