Romanian Case Law as an Example of the Impact of Para-regulatory Texts on Decisions of National Courts - Chapter 09 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

Author(s):

Crenguta Leaua

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28 pages

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Published:

October, 2015

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Originally from Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

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1. INTRODUCTION

While the relevance of para-regulatory texts in the field of

international arbitration, such as the IBA Guidelines on Conflicts of

Interest in International Arbitration or the IBA Rules on the Taking of

Evidence in International Commercial Arbitration, is undoubtedly

increasing, decisions by national courts referring to such texts remain

relatively rare.1

The decision of the High Court of Cassation and Justice of

Romania2 analysed in the present article is one of the rare examples of

a decision which not only expressly refers to, but also attaches

significant importance to a para-regulatory text.

What renders the presently discussed case of particular interest, is

the fact that the para-regulatory text in question―the ICC Guidelines

for Arbitrating Small Claims under the ICC Rules of Arbitration (the

“ICC Guidelines”)―was considered by the High Court of Cassation

and Justice to create legitimate expectations in the parties. In other

words, the High Court attached to the ICC Guidelines a binding nature

that most probably was not intended by the drafters of these

guidelines. The reason for this, is a phenomenon that may be

witnessed throughout the entire development and promulgation of

guidelines in the field of international arbitration: Para-regulatory

texts, even though they are not intended to be binding upon either the

parties, the tribunals, institutions or national courts, may (and

increasingly do) raise legitimate expectations in parties. It is these

expectations (whether intended or not by the drafters of guidelines)

that may raise para-regulatory texts from their intended consulting

and guiding to a more binding and compulsory role in international

arbitration proceedings.

Apart from being a good example of the role of guidelines in

international arbitration, the decision deserves further detailed

analysis because it is one of the few national court decisions denying

recognition and enforcement of a foreign arbitral award based on the

New York Convention for the Recognition and Enforcement of Foreign

Arbitral Awards (the “New York Convention” or “NYC”). Specifically,

the High Court of Cassation and Justice addressed the following

issues, all of which will be discussed in more detail below:

• Whether, after bifurcated arbitral proceedings, in which firstly,

a partial award was rendered on the question of the validity of

a contract and secondly, a final award on liability arising from

a breach of the same contract, the request for recognition and

enforcement of the final award is admissible if no request for

the recognition of the partial award has been made before;

• Whether the provisions of the European Convention for

Human Rights (“ECHR”) guaranteeing due process form part

of Romanian international public policy, the violation of which

by an arbitral tribunal may result in the non-recognition of its

award;

• Whether a wrong decision by the ICC Court on whether, in the

absence of a determination by the parties, a dispute shall be

heard by a sole arbitrator or by a three-arbitrator panel, may

constitute a violation of the parties’ procedural guarantees

under the ECHR. Indeed, the Romanian courts attached

significant importance to the fact that the ICC Guidelines,

which are “para-regulatory texts” without binding force of

law, recommended the appointment of a three-member

arbitral tribunal, rather than a sole arbitrator, in cases such as
the one at issue here;