CONTROVERSIES REGARDING THE ARBITRAL INSTITUTION DESIGNATED BY SUB-CLAUSE 20.6 OF FIDIC CONDITIONS OF CONTRACT TO ADMINISTER THE ARBITRAL CASES RESULTED FROM EXECUTION OF PUBLIC WORKS UNDER THE ROMANIAN LAW
Journal Title: Challenges of the knowledge society ( Provocari ale societatii cunoasterii ) - Year 2019, Vol 11, Issue 13
Abstract
From 2010 to 2017 the execution of public works in Romania took place by virtue of the General Conditions of Contract of FIDIC Yellow Book or Red Book approved by Government Decision no. 1405/2010. In 2011 the Romanian Ministry of Transportation and Infrastructure issued Order no. 146/2011 whereby it approved standard forms of Particular Conditions of Contract, Appendix to Tender and Contract Agreement for execution of such public works. In particular, the Appendix to Tender modified the provisions of Sub-Clause 20.6 regarding the arbitral institution empowered to administer the disputes resulted from public procurement contracts based on FIDIC Conditions of Contract. The mention included in the Appendix to Tender in this regard referred to ”the Court of International Commercial Arbitration”, apparently an incomplete reference to the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania. Encouraged by a subjective interpretation of the contractual provisions, a significant number of contractors submitted their disputes with the National Company for Administration of Road Infrastructure in Romania to the ICC International Court of Arbitration. Recently, the Bucharest Court of Appeals decided that this approach was wrong, setting aside the final partial awards issued under the auspices of the ICC International Court of Arbitration. In an attempt to clarify which arbitral institution has jurisdiction to administer such arbitral cases, this paper analyzes the controversial contractual provisions, the soundness of the various interpretation and arguments brought by the involved parties under the rules of interpretation provided by the Romanian Law and internationally applicable custom in arbitration, and the recent jurisprudence of Romanian Courts related to this matter.
Authors and Affiliations
Cristian Răzvan RUGINĂ
Keywords
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