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Tudor Vlad RĂDULESCU: Considerations regarding the efficency of arbitration clause inclosed in a secret act

Abstract: The article aims to address the issue of compatibility between the arbitration clause and the operation of simulation. More specifically, to answer two problems that could arise if the parties, choosing to hide the true legal relationship between them, have concluded a secret act, known only by them, and a public act, ostensible, enforceable against third parties, where they chose to introduce an arbitration clause. Thus, the two problems can be summarized as follows: 1. the action for declaration of the simulation will be in the jurisdiction of the courts or of an arbitral tribunal? and 2. if disputes are in relation to the performance of the obligations arising from the covert contract, the one taking effect between the parties, the competence will belong to the courts or to the arbitral tribunal? The above problems may arise where the parties have included the arbitration clause only in the content of the public act, and not in the secret one, and shall be established to what extent this clause will be more effective, or, inother words, what is the relation between the arbitration clause and the avert contract between the parties: of independence or dependence?

Key-words:simulation,  arbitration clause, relativity of contracts, covert act, covert agreement.


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