New Legal Perspectives regarding Mandatory Laws in the Field of International Arbitration

ABSTRACT.The need to maintain and consolidate good relations between parties to a contract provided the reasons for creating legal means of prevention and conclusion of litigations regarding international contracts. The conflicts that arise within international relations and cannot be mutually solved are concluded, in their vast majority, through arbitrate awards. Only rarely such conflicts are put forward in front of ordinary judicial courts. The rules that govern arbitrate procedures may have permissive character, but also may be mandatory for the parties. This study tackles the issue of mandatory rules in international arbitration procedures, emphasizing the role of such rules that apply, even if the parties do not agree to them.Keywords: arbitration, mandatory rules, international arbitral agreement1. IntroductionPreference of the parties to international commercial contracts to refer to arbitration agreements can be explained by the ability of arbitration to resolve disputes arising from contracts, taking into account their international trade rules and practices. If we add to the aforementioned notions, certain advantages such as simplicity of procedure, secret debates, lower costs, speed of resolution, we understand that arbitration should be considered the most appropriate method of resolving disputes in international legal relations. Of course, arbitration is not limited only to international commercial contracts. Arbitration has proven useful in many other fields of litigation like civil lawsuits, divorce suits, etc., as most of these situations are characteristic to the actual development of our society.1 Therefore, arbitration represents a useful tool for the persons that desire a quick, confidential and sometimes less expensive procedure, through which they may achieve their legal goals.2. Addressing the international arbitrationThe arbitrate character arises from the fact that the parties agree to submit their dispute to private persons they appoint for that purpose and support the solution they will adopt. Arbitration involves the power to judge, i.e. to resolve the dispute before it, which distinguishes it from settlement, as the latter takes place through negotiation by the parties only. Power of arbitrators to judge is contractual, and that distinguishes arbitration from judiciary cases, i.e. lawsuit judged in courts.The basis for any international commercial arbitration is the arbitration agreement, which may take two forms: the arbitration clause and the compromise. The arbitration clause stipulates that a contract dispute arising from international trade will be settled through arbitration. The compromise is a document, which contains the agreement of the parties to submit to arbitration a preexisting dispute. Arbitration agreement is itself an international commercial contract, subject to such conditions as the validity of the principle lex voluntatis. This solution was established at the New York Convention of June 10, 1958, regarding the Recognition and Enforcement of Foreign Arbitrate Awards and also by the European Convention on International Commercial Arbitration at Geneva on 12 April 1961. In the event that the parties have not designated the applicable law of the arbitration agreement, according to those conventions, the law where the arbitration award should be given will be incident. The European Convention of Geneva provides a third solution, regarding the situation where the law of the country where the sentence must be given can not be predicted. In that case, it is mandatory that the law of the jurisdiction indicated by lex fori should be competent.Arbitration procedure ends with a sentence or arbitrate award final and enforceable which can be contested only by extraordinary appeal, for a review of the arbitration body and only for reasons stipulated in the Rules of procedure. Use of the extraordinary appeal is the only remedy that may lead to the annulment of the initial award. …