A case study in matters of the

Commercial Arbitration Procedure

Masterand: Burada Eugen-liviu

Arbitrary Definition Law

An arbitrary definition law explains decisions made or actions taken that are
not necessarily based on established facts, but instead based in large part on
opinions. Arbitrary decisions do not reflect accepted legal precedence, nor are
they made with regards to existing facts or established circumstances. They are
often associated with individuals or forces that operate outside the realm of the
law, such as tyrants and autocrats that use accumulated or delegated power to
set personal agendas.

In judicial terms, determining whether or not a law or decision is arbitrary

most often occurs when a court is asked to render an opinion on the actions of an
administrative body of a government agency. Administrative agencies derive their
authority through vesting clauses in federal and state constitutions to establish
rules and regulations, and issue orders arising from disagreements.

Officials appointed to find ways to circumvent gridlock and cut through red
tape to make the government run more efficiently staff these agencies. However,
in their zeal to get things accomplished, they can at times act with disregard for
the due process imposed by the law and procedures created by elected
legislatures or laws established.

The Rule of Law has been systematically referred to in the major political
documents of the Council of Europe, as well as in numerous Conventions and
Recommendations. The Rule of Law is notably mentioned as an element of
common heritage in the Preamble to the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR), as a founding principle of
European democracies in Resolution Res(2002)12 establishing the European
Commission for the Efficiency of Justice (CEPEJ), and as a priority objective in the
Statute of the Venice Commission. However, the Council of Europe texts have not
defined the Rule of Law, nor has the Council of Europe created any specific
monitoring mechanism for Rule of Law issues.

The principle of the Rule of Law does not impose a choice between monism
and dualism, but pacta sunt servanda applies regardless of the national approach
to the relationship between international and internal law. At any rate, full
domestic implementation of international law is crucial. When international law is
part of domestic law, it is binding law within the meaning of the previous
paragraph relating to supremacy of law (II.A.2). This does not mean, however,
that it should always have supremacy over the Constitution or ordinary
legislation.

If we take a look at the provisions of art. 579(2) CPC, on the verification of the
jurisdiction of the arbitral tribunal in internal arbitration, which secondarily
applies to international arbitration (under art. 1123 CPC, which stipulates that
some aspects not regulated by the parties under the arbitration agreement and
not referred by them to the arbitral tribunal shall be settled by applying the
provisions of the “book” on internal arbitration), we find that the conclusion by
which the arbitral tribunal decides that it is competent may be dissolved only in
an the action for annulment brought against the arbitral award.

Conclusion: The importance of international conventions applicable to

legal relations specific to international trade is to remove legal obstacles from the
development of international trade relations. Indirectly, these international
conventions also contribute to the uniformity of the legal rules in the legislation
of the states of the international community, since, in the making of regulation,
the national legislature is inspired by the rules contained in international
conventions.