Bilateral Approach of “Alter Bilateral Approach of “Alter Ego” Theory – Romanian and Ego” Theory – Romanian and

French PerspectivesFrench Perspectives

Radu Bogdan Bobei*Radu Bogdan Bobei** * Ph.D. in private international law, attorney – at – law, Ph.D. in private international law, attorney – at – law, member of Bucharest Bar Association, Lecturer at the member of Bucharest Bar Association, Lecturer at the

Faculty of Law, University of Bucharest, arbitrator, Faculty of Law, University of Bucharest, arbitrator, Romanian Court of International Commercial Romanian Court of International Commercial

Arbitration and Slovenian Court of International Arbitration and Slovenian Court of International Commercial ArbitrationCommercial Arbitration

I. General preliminary remarksI. General preliminary remarks

I.1.I.1. Clarifying the nature of the arbitration Clarifying the nature of the arbitration agreement – legal concept, legal and agreement – legal concept, legal and

economic concept as welleconomic concept as well ? ?

I.1.1. Characterization of the arbitration agreement as legal conceptI.1.1. Characterization of the arbitration agreement as legal concept Consequence: owing to the fact that arbitration is consensual in Consequence: owing to the fact that arbitration is consensual in

nature, the arbitration agreement is binding upon the companies nature, the arbitration agreement is binding upon the companies who signed the arbitration agreement either in the form of the who signed the arbitration agreement either in the form of the arbitration clause included in the main contract or under the form of arbitration clause included in the main contract or under the form of a separate agreement. a separate agreement.

I.1.2. Characterization of the arbitration agreement as legal and I.1.2. Characterization of the arbitration agreement as legal and economic concept as well economic concept as well

Consequence: the arbitration agreement is binding upon the Consequence: the arbitration agreement is binding upon the companies who signed/not signed the arbitration agreement. In the companies who signed/not signed the arbitration agreement. In the latter hypothesis, the companies have established an latter hypothesis, the companies have established an economic economic cooperationcooperation in the business field and they are behaving as signatory in the business field and they are behaving as signatory parties. Legally speaking, they are non-signatory parties. parties. Legally speaking, they are non-signatory parties.

I.2.I.2. Importance of clarifying the nature of the Importance of clarifying the nature of the arbitration agreementarbitration agreement

In Romanian law system, one of the grounds for setting aside an arbitral In Romanian law system, one of the grounds for setting aside an arbitral award is the following: the Arbitral Tribunal has settled the dispute in the award is the following: the Arbitral Tribunal has settled the dispute in the absence of the arbitration agreement(art.364 paragraph b, first thesis of absence of the arbitration agreement(art.364 paragraph b, first thesis of Romanian Civil Code Procedure, in force at the date of writing this paper). Romanian Civil Code Procedure, in force at the date of writing this paper).

I.2.1. Arbitration agreement - legal conceptI.2.1. Arbitration agreement - legal concept Not signing the arbitration agreement means the lack of the consensual Not signing the arbitration agreement means the lack of the consensual

nature of the arbitration. Such lack has the following consequence: the nature of the arbitration. Such lack has the following consequence: the procedure for setting aside the arbitral award, if any, may start and finish procedure for setting aside the arbitral award, if any, may start and finish successfully. As well, the enforceability of such arbitral award is in danger. successfully. As well, the enforceability of such arbitral award is in danger.

I.2.2. Arbitration agreement – legal and economic concept as well I.2.2. Arbitration agreement – legal and economic concept as well Not signing the arbitration agreement not means the lack of the Not signing the arbitration agreement not means the lack of the

consensual nature of the arbitration, if the companies established an consensual nature of the arbitration, if the companies established an economic cooperation for making business. Such consensual nature exists, economic cooperation for making business. Such consensual nature exists, but implicitly. The consequence is the following: the procedure for setting but implicitly. The consequence is the following: the procedure for setting aside the arbitral award, if any, may start but not successfully finished for aside the arbitral award, if any, may start but not successfully finished for suchsuch ground invoked (with regards to any other grounds for setting aside ground invoked (with regards to any other grounds for setting aside the arbitral award, see point VI. of this paper). As well, the enforceability of the arbitral award, see point VI. of this paper). As well, the enforceability of such arbitral award is not in danger. such arbitral award is not in danger. The non – signatory party of the arbitration agreement didn’t renounced The non – signatory party of the arbitration agreement didn’t renounced to the right of access to the state courts, but made implicitly their choice for to the right of access to the state courts, but made implicitly their choice for settling the dispute by means of arbitration. settling the dispute by means of arbitration.

I.3.I.3. Characterization of the arbitration Characterization of the arbitration agreement as legal and economic conceptagreement as legal and economic concept is more suitable with the nature of is more suitable with the nature of arbitration – soft procedure for settling the arbitration – soft procedure for settling the disputes arising out of or in connection disputes arising out of or in connection with the contracts concluded by the with the contracts concluded by the members of the business community. members of the business community.

II. Types of the extension of the II. Types of the extension of the arbitration agreementarbitration agreement

II.1. Special preliminary remarkII.1. Special preliminary remark

The The extensionextension of the arbitration agreement is not the same thing of the arbitration agreement is not the same thing with the with the transmission transmission of the arbitration agreement, especially with the of the arbitration agreement, especially with the transmission of the arbitration clause included in the main contract, as transmission of the arbitration clause included in the main contract, as assigned. assigned.

According to the usages of trade (According to the usages of trade (lex mercatoria universalislex mercatoria universalis), if the ), if the main contract is assigned, the arbitration clause is binding the assignee main contract is assigned, the arbitration clause is binding the assignee (see (see Romanian arbitral award no.145 of 27 September 1996Romanian arbitral award no.145 of 27 September 1996, published in , published in Babiuc V./Căpăţână OBabiuc V./Căpăţână O., ., Arbitral Commercial Jurisprudence Case Law Arbitral Commercial Jurisprudence Case Law 1953-2000, Bucharest,1953-2000, Bucharest, 2003, at 10), if the parties of the assignment didn’t 2003, at 10), if the parties of the assignment didn’t decided otherwise. decided otherwise.

Such binding is not representing the consequence of the extension Such binding is not representing the consequence of the extension of the arbitration clause. Such binding is representing the consequence of of the arbitration clause. Such binding is representing the consequence of applying the principle of efficiency with regard to the arbitration clause (see, applying the principle of efficiency with regard to the arbitration clause (see, for Romanian literature, for Romanian literature, Severin A.,Severin A., Key Elements of International Trade Key Elements of International Trade Law, Bucharest, 2004,Law, Bucharest, 2004, at 388 ; as well, for French literature, see at 388 ; as well, for French literature, see Loquin ÉLoquin É., ., Différences et convergences dans le régime de la transmission et de Différences et convergences dans le régime de la transmission et de l’extension de la clause compromissoire devant les jurisdictions françaisesl’extension de la clause compromissoire devant les jurisdictions françaises, , in in Les Cahiers de l’Arbitrage, 1, 2002, première partieLes Cahiers de l’Arbitrage, 1, 2002, première partie, at 7-25). , at 7-25).

II.2. Extension of the arbitration agreement within the II.2. Extension of the arbitration agreement within the group of contracts concluded by the same parties – not all group of contracts concluded by the same parties – not all

the contracts are containing arbitral clauses (not hypothesis the contracts are containing arbitral clauses (not hypothesis of Alter Ego Theory)of Alter Ego Theory)

II.2.1. II.2.1. Business life is developing more and more. A single contract Business life is developing more and more. A single contract concluded by the parties doesn’t satisfy anymore the needs for fulfilling concluded by the parties doesn’t satisfy anymore the needs for fulfilling complex economic goals. Therefore, the companies are concluding very complex economic goals. Therefore, the companies are concluding very often manifold contracts for satisfying the same economic need. Those often manifold contracts for satisfying the same economic need. Those contracts being bound each other economically speaking, it was just a contracts being bound each other economically speaking, it was just a question of time for promoting the theory of “umbrella contracts“. It exists a question of time for promoting the theory of “umbrella contracts“. It exists a similar concept in investment arbitration( for the concept of “umbrella-similar concept in investment arbitration( for the concept of “umbrella-clauses” used in such investment arbitration, see clauses” used in such investment arbitration, see Popa C., Crăciunescu IPopa C., Crăciunescu I, , Trends of arbitral jurisprudence in the field of approaching umbrella-clauses Trends of arbitral jurisprudence in the field of approaching umbrella-clauses in the Bilateral Investment Treatiesin the Bilateral Investment Treaties, in , in Romanian Arbitration Journal, 2, Romanian Arbitration Journal, 2, 20102010, at 1-17). As consequence, is representing a reality the extension of , at 1-17). As consequence, is representing a reality the extension of the arbitral clause - included in the contract concluded by the parties, to the the arbitral clause - included in the contract concluded by the parties, to the other contract concluded by the same parties, but not containing an arbitral other contract concluded by the same parties, but not containing an arbitral clause. clause.

II.2.2.II.2.2. The consent of the parties and their contractual behavior may The consent of the parties and their contractual behavior may represent sources for the extension of the arbitration agreement within the represent sources for the extension of the arbitration agreement within the group of contracts concluded by the group of contracts concluded by the samesame parties. Such extension has the parties. Such extension has the following background: the arbitration agreement is representing a legal and following background: the arbitration agreement is representing a legal and economic concept, as I have stated above. As consequence, the lawyers economic concept, as I have stated above. As consequence, the lawyers and the arbitrators have the mission to discover and re-discover the and the arbitrators have the mission to discover and re-discover the economic roots of the arbitration procedure. economic roots of the arbitration procedure.

II.3. Extension of the arbitration agreement II.3. Extension of the arbitration agreement within the group of companies (hypothesis within the group of companies (hypothesis of Alter Ego Theory)of Alter Ego Theory)

III. “Alter Ego” Theory –III. “Alter Ego” Theory –philosophical, economic, philosophical, economic,

legal meaning of the same legal meaning of the same theorytheory

III.1. III.1. Philosophical meaning Philosophical meaning

Alter Ego Alter Ego is representingis representing “autre moi-même; personne “autre moi-même; personne de confiance, ami inséparable” (de confiance, ami inséparable” (see see Dictionnaire Dictionnaire Hachette, Édition 2001, Hachette, Édition 2001, at 60at 60).).

III.2. III.2. Economic meaning Economic meaning

Alter Ego Alter Ego is representing the company non-signatory of is representing the company non-signatory of the arbitration agreement, but involved in the economic the arbitration agreement, but involved in the economic performance or/and negotiation of the contract performance or/and negotiation of the contract concluded by other parties. The types of the economic concluded by other parties. The types of the economic involvement in such performance may be manifold. For involvement in such performance may be manifold. For instance, the delivery of the goods provided by non – instance, the delivery of the goods provided by non – signatory company may represent an economic signatory company may represent an economic involvement of such company in the performance of the involvement of such company in the performance of the contract concluded by other companies. contract concluded by other companies.

III.3. III.3. Legal meaning Legal meaning

The company that has signed the agreement is regarded The company that has signed the agreement is regarded as a double of the non – signatory company. The as a double of the non – signatory company. The expressions used in the international literature for such expressions used in the international literature for such legal meaning are “legal meaning are “the transparency of the legal the transparency of the legal personalitypersonality”, “”, “piercing of the corporate veilpiercing of the corporate veil”, “”, “Alter EgoAlter Ego” ” (see (see Vidal D.Vidal D. , , The extension of arbitration agreements The extension of arbitration agreements within the groups of companies: the Alter Ego Theory within the groups of companies: the Alter Ego Theory Doctrine in Arbitral and Court Decisions Doctrine in Arbitral and Court Decisions inin ICC Bulletin, ICC Bulletin, vol.16, second issue, 2005, vol.16, second issue, 2005, at 63-76). Alter Ego theory at 63-76). Alter Ego theory is familiar with the corporate groups, parent- subsidiary is familiar with the corporate groups, parent- subsidiary relationships and all combinations thereof. As well, such relationships and all combinations thereof. As well, such theory is familiar with independent companies which are theory is familiar with independent companies which are acting doubling each other their contractual behaviour. acting doubling each other their contractual behaviour.

III.4.III.4. Such three meanings of the same theory have to be Such three meanings of the same theory have to be promoted by domestic and international arbitral promoted by domestic and international arbitral jurisprudence. Arbitration is not anymore an jurisprudence. Arbitration is not anymore an ordinaryordinary legal procedure for settling the disputes, but a cultural legal procedure for settling the disputes, but a cultural way for promoting the development of the business way for promoting the development of the business community. Cultural way of interpreting the legal community. Cultural way of interpreting the legal concepts for developing a flexible business life, deep concepts for developing a flexible business life, deep legal thinking, but in full accordance with the economic legal thinking, but in full accordance with the economic thinking of the business people – that’s the core of the thinking of the business people – that’s the core of the arbitration. And such core is able to be developed by the arbitration. And such core is able to be developed by the way of understanding the three meanings of Alter Ego way of understanding the three meanings of Alter Ego Theory. Theory.

IV. Alter Ego Theory- IV. Alter Ego Theory- Romanian perspectiveRomanian perspective

IV.1IV.1. Facts. Facts

The transaction at issue was a sale of goods, the seller The transaction at issue was a sale of goods, the seller being a Dutch company and the buyer being a Marshall being a Dutch company and the buyer being a Marshall Islands- based company. Owing to the fact that the latter Islands- based company. Owing to the fact that the latter didn't pay the price, the Dutch company commenced the didn't pay the price, the Dutch company commenced the arbitration against the Marshall Islands- based company arbitration against the Marshall Islands- based company (signatory party) as well as against a Romanian (signatory party) as well as against a Romanian company (non – signatory party). As consequence, the company (non – signatory party). As consequence, the parties involved in arbitration were the Dutch company parties involved in arbitration were the Dutch company (the Claimant), the Romanian company (the first (the Claimant), the Romanian company (the first Respondent), the company having its headquarters in Respondent), the company having its headquarters in Marshall Islands (the second Respondent). Marshall Islands (the second Respondent).

IV.2IV.2. Law issues . Law issues

IV.2.1. The arbitration agreement is IV.2.1. The arbitration agreement is binding for a non-signatory party of the binding for a non-signatory party of the contract containing an arbitral clause ? ;contract containing an arbitral clause ? ;

IV.2.2. The extension of the arbitration IV.2.2. The extension of the arbitration agreement towards non-signatory party – agreement towards non-signatory party – possible consequence of the economic possible consequence of the economic involvement of Romanian company (non-involvement of Romanian company (non-signatory party) in the performance of the signatory party) in the performance of the contract;contract;

IV.3.IV.3. The reasoning of the Arbitral Tribunal – the The reasoning of the Arbitral Tribunal – the

consequence of such reasoningconsequence of such reasoning The Arbitral Tribunal held that the consent of Romanian company to the The Arbitral Tribunal held that the consent of Romanian company to the

arbitral agreement was implicitly expressed. This holding was based on the arbitral agreement was implicitly expressed. This holding was based on the following reasons: first, the Romanian Company received the goods and following reasons: first, the Romanian Company received the goods and promised the partial payment of the price; second, the Romanian company promised the partial payment of the price; second, the Romanian company was aware of the existence of the contract that was subject matter of the was aware of the existence of the contract that was subject matter of the dispute. In this respect, the Arbitral Tribunal considered that the arbitral dispute. In this respect, the Arbitral Tribunal considered that the arbitral agreement was binding for the Romanian company because the latter was agreement was binding for the Romanian company because the latter was involved in the performance of the contract (see involved in the performance of the contract (see Interlocutory award, 3 Interlocutory award, 3 August 2006August 2006, in , in Romanian Arbitration Journal, 2, 2007, Romanian Arbitration Journal, 2, 2007, at 52-54; for a brief at 52-54; for a brief analyze, see analyze, see Radu Bogdan Bobei,Radu Bogdan Bobei, Current Status of International Current Status of International Arbitration in Romania (National Report)Arbitration in Romania (National Report), in , in Yearbook of Private Yearbook of Private International Law, Lausanne, vol.10, 2008International Law, Lausanne, vol.10, 2008, at 473-491). Such involvement , at 473-491). Such involvement wasn’t provided by a branch (subsidiary) of the buyer, but it was provided by wasn’t provided by a branch (subsidiary) of the buyer, but it was provided by an independent company (Romanian company). an independent company (Romanian company).

The consequence of such reasoning is the following: The consequence of such reasoning is the following: an arbitral an arbitral agreement may be held to require a non-signatory party to arbitrate agreement may be held to require a non-signatory party to arbitrate when consent to the agreement was proved by some circumstances when consent to the agreement was proved by some circumstances such us performing the contract that was subject matter of the such us performing the contract that was subject matter of the dispute.dispute.

V. Alter Ego Theory – V. Alter Ego Theory – French perspectiveFrench perspective

V.1V.1. Facts. Facts

The contract in dispute was concluded between the The contract in dispute was concluded between the Venezuelan branch of Latin American engineering Venezuelan branch of Latin American engineering company and the Venezuelan subsidiary of a European company and the Venezuelan subsidiary of a European engineering company relating to work in connection with engineering company relating to work in connection with a development project awarded to a consortium of a development project awarded to a consortium of international companies (including the said European international companies (including the said European engineering company). The request for arbitration was engineering company). The request for arbitration was submitted by the Latin American Engineering company submitted by the Latin American Engineering company against the Venezuelan subsidiary of the European against the Venezuelan subsidiary of the European engineering company( Respondent 1), on the one side, engineering company( Respondent 1), on the one side, against the European Engineering company against the European Engineering company (Respondent 2), on the other side. (Respondent 2), on the other side.

V.2V.2. Law issues. Law issues

V.2.1. The question of the proper Claimant (this is not the topic of piercing V.2.1. The question of the proper Claimant (this is not the topic of piercing the corporate veil or Alter Ego Theory)the corporate veil or Alter Ego Theory)

The answer was provided by art.354, second paragraph of the The answer was provided by art.354, second paragraph of the Venezuelan Commercial Code, in force at the date of settling the dispute. Venezuelan Commercial Code, in force at the date of settling the dispute. Corporations incorporated abroad having branches in Venezuela or other Corporations incorporated abroad having branches in Venezuela or other type of business shall keep their nationality and shall be considered type of business shall keep their nationality and shall be considered domiciled in Venezuela. Such branches are representing extensions of the domiciled in Venezuela. Such branches are representing extensions of the Parent Corporation. As consequence, such corporation and their branches Parent Corporation. As consequence, such corporation and their branches can sue and can be sued. can sue and can be sued.

V.2.2. The question of the proper Respondents (this is the topic of piercing V.2.2. The question of the proper Respondents (this is the topic of piercing

the corporate veil or Alter Ego Theory), especially of the Respondent 2 – the corporate veil or Alter Ego Theory), especially of the Respondent 2 – non-signatory party non-signatory party

Piercing the corporate veil or Alter Ego Theory are representing Piercing the corporate veil or Alter Ego Theory are representing exceptions to the following rule: separate legal personalities ought to be exceptions to the following rule: separate legal personalities ought to be respected by the arbitrators. As consequence, the arbitration clause has respected by the arbitrators. As consequence, the arbitration clause has effect only with respect to the parties to the contract (with regard to the link effect only with respect to the parties to the contract (with regard to the link between Alter Ego Theory and the group of companies, see between Alter Ego Theory and the group of companies, see Bernard Bernard HanotiauHanotiau, , L’arbitrage et les groupes de sociétés, L’arbitrage et les groupes de sociétés, inin Lex Cahiers de Lex Cahiers de l’Arbitrage, 2, 2002, première partiel’Arbitrage, 2, 2002, première partie, at 6-17). , at 6-17).

V.3.V.3. The reasoning of the Arbitral Tribunal with regard to the The reasoning of the Arbitral Tribunal with regard to the question of the proper Respondents – the consequence of such question of the proper Respondents – the consequence of such reasoning reasoning

The Arbitral Tribunal concluded that both Respondents are the The Arbitral Tribunal concluded that both Respondents are the proper Respondents (“parties not expressly mentioned in the proper Respondents (“parties not expressly mentioned in the contract or agreement may both avail themselves of rights under it contract or agreement may both avail themselves of rights under it and be bound by it”). The reasoning was developed, as follows: and be bound by it”). The reasoning was developed, as follows:

V.3.1. Between the time of the tender in 1993 and the signature of V.3.1. Between the time of the tender in 1993 and the signature of the contract in 1998, all the working and legal relationships of the contract in 1998, all the working and legal relationships of Claimant were with Respondent 2;Claimant were with Respondent 2;

V.3.2. the negotiation for concluding the contract was made with V.3.2. the negotiation for concluding the contract was made with Respondent 2(parent company);Respondent 2(parent company);

V.3.3. some payments were made by Respondent 2;V.3.3. some payments were made by Respondent 2; V.3.4. the executives of Respondent 1 and 2 in charge for the V.3.4. the executives of Respondent 1 and 2 in charge for the

project in dispute were the same;project in dispute were the same; V.3.5. important meetings with connection to the project were held V.3.5. important meetings with connection to the project were held

not at the headquarters of the subsidiary, but at the headquarters of not at the headquarters of the subsidiary, but at the headquarters of the parent company. the parent company.

The consequence of such reasoning was the The consequence of such reasoning was the following: the extension of said contract and the following: the extension of said contract and the arbitration clause to Respondent 2. The active arbitration clause to Respondent 2. The active participation of the Respondent 2 in negotiation participation of the Respondent 2 in negotiation and/or preparation and/or execution of the said and/or preparation and/or execution of the said contract is doubling the contractual behaviour of contract is doubling the contractual behaviour of the Respondent 1(see the Respondent 1(see final award in ICC case final award in ICC case no. 11160/2002,no. 11160/2002, inin Extracts form ICC Awards Extracts form ICC Awards Relating to the Extension of Arbitration Relating to the Extension of Arbitration Agreements to Non-Signatories,Agreements to Non-Signatories, in in ICC ICC Bulletin, vol.16, second issue, 2005, Bulletin, vol.16, second issue, 2005, at 99-101). at 99-101).

VI. The link between “Alter Ego” VI. The link between “Alter Ego” Theory and the grounds for Theory and the grounds for

setting aside the arbitral award, setting aside the arbitral award, on the one hand, and the on the one hand, and the

enforceability of the arbitral enforceability of the arbitral

award on the other handaward on the other hand

VI.1.VI.1. Special preliminary Special preliminary remark remark

VI.1.1. Pursuant to art.364 of Romanian Civil Code Procedure, in VI.1.1. Pursuant to art.364 of Romanian Civil Code Procedure, in force at the date of presenting this paper, the arbitral award is force at the date of presenting this paper, the arbitral award is subject matter of the setting aside procedure only for nine grounds - subject matter of the setting aside procedure only for nine grounds - not related with the merits of the dispute. Taking into account the not related with the merits of the dispute. Taking into account the legal consequence of Alter Ego Theory (the extension of arbitration legal consequence of Alter Ego Theory (the extension of arbitration agreement to non-signatory parties), two grounds for setting aside agreement to non-signatory parties), two grounds for setting aside the arbitral award may be the arbitral award may be mainlymainly invoked : the Arbitral Tribunal has invoked : the Arbitral Tribunal has settled the dispute in the absence of an arbitration settled the dispute in the absence of an arbitration agreement(art.364 b) first thesis of Romanian Civil Code agreement(art.364 b) first thesis of Romanian Civil Code Procedure), the arbitral award contains provisions which cannot be Procedure), the arbitral award contains provisions which cannot be complied with public order, (…), mandatory provisions of law complied with public order, (…), mandatory provisions of law (art.364 i) of Romanian Civil Code Procedure). With regard to (art.364 i) of Romanian Civil Code Procedure). With regard to art.364 b) first thesis of Romanian Civil Code Procedure, such art.364 b) first thesis of Romanian Civil Code Procedure, such ground for setting aside the arbitral award is easy to remove taking ground for setting aside the arbitral award is easy to remove taking into account the nature of arbitration agreement, as established (see into account the nature of arbitration agreement, as established (see point I.2.2. of this paper). With regard to art.364 b) first thesis of point I.2.2. of this paper). With regard to art.364 b) first thesis of Romanian Civil Code Procedure, we may ask ourselves if the Romanian Civil Code Procedure, we may ask ourselves if the requirement “that arbitration agreements have to be made in written requirement “that arbitration agreements have to be made in written and signed“ is an integral part of public policy (and signed“ is an integral part of public policy ( l’ordre publicl’ordre public). ).

VI.1.2. Such concept of public order (VI.1.2. Such concept of public order ( l’ordre l’ordre publicpublic) is used not only by Romanian Civil Code ) is used not only by Romanian Civil Code Procedure, but is used by art.168 second point Procedure, but is used by art.168 second point first thesis of Law no.105/1992 on the settlement first thesis of Law no.105/1992 on the settlement of private international relations, art. V, second of private international relations, art. V, second paragraph, b) of Convention of New York, 1958 paragraph, b) of Convention of New York, 1958 (Romania is part of such international document (Romania is part of such international document since 1961). Therefore, the enforceability of the since 1961). Therefore, the enforceability of the arbitral award depends by the meaning of the arbitral award depends by the meaning of the concept of public policy, as regulated by the concept of public policy, as regulated by the state whose territory would be enforced such state whose territory would be enforced such arbitral award. arbitral award.

VI.2. VI.2. The following links “Alter Ego Theory – The following links “Alter Ego Theory – grounds for setting aside the arbitral award”, grounds for setting aside the arbitral award”, “Alter Ego Theory- the enforceability of arbitral “Alter Ego Theory- the enforceability of arbitral award” can be settled by explaining the concept award” can be settled by explaining the concept of “of “public policypublic policy”. All around Europe , a huge ”. All around Europe , a huge debate started for defining “l’ordre public” (see debate started for defining “l’ordre public” (see Babiuc VBabiuc V., ., Public order of private international Public order of private international law in arbitral jurisprudence,law in arbitral jurisprudence, in in Romanian Romanian Arbitration Journal, 3, 2007Arbitration Journal, 3, 2007, at 1-7, , at 1-7, Romanian Romanian Arbitration Journal, 4, 2007,Arbitration Journal, 4, 2007, at 1-7, at 1-7, Derruppé JDerruppé J., ., Droit international privé, Dalloz, Paris, 1995, Droit international privé, Dalloz, Paris, 1995, at at 46). The core of such concept is represented by 46). The core of such concept is represented by the fundamental principles of law (vaguely the fundamental principles of law (vaguely manner of defining “manner of defining “l’ordre publicl’ordre public”). ”).

VI.2.1. The availability of the arbitration VI.2.1. The availability of the arbitration agreement’s extension to non-signatory party agreement’s extension to non-signatory party (Alter Ego Theory) means the following: it is not (Alter Ego Theory) means the following: it is not mandatory the requirement “the arbitration mandatory the requirement “the arbitration agreement has to be made in written and agreement has to be made in written and signed”. Does a state court understands that ? If signed”. Does a state court understands that ? If the state court understands that such the state court understands that such requirement is mandatory (being part of public requirement is mandatory (being part of public policy), and the Arbitral Tribunal extended the policy), and the Arbitral Tribunal extended the arbitration agreement to non-signatory party, the arbitration agreement to non-signatory party, the arbitral award is subject matter of the arbitral award is subject matter of the annullement. annullement.

VI.2.2. It is contrary to public policy - for the purposes of New York VI.2.2. It is contrary to public policy - for the purposes of New York Convention(1958), the extension of the arbitration agreement to Convention(1958), the extension of the arbitration agreement to non-signatory party ? Taking into account that nature of the right non-signatory party ? Taking into account that nature of the right (constitutional right) of the access to state courts – the constitutional (constitutional right) of the access to state courts – the constitutional rights being part of public policy, the Arbitral Tribunal may not rights being part of public policy, the Arbitral Tribunal may not extend the arbitration agreement to non-signatory party. In fact, extend the arbitration agreement to non-signatory party. In fact, pursuant to art.35 of ICC Rules of Arbitration, the Arbitral Tribunal pursuant to art.35 of ICC Rules of Arbitration, the Arbitral Tribunal “(…) shall make any effort to make sure that the Award is “(…) shall make any effort to make sure that the Award is enforceable”.enforceable”. In case no.10758/2000(ICC arbitration), the Arbitral In case no.10758/2000(ICC arbitration), the Arbitral Tribunal decided that there wasn’t arbitration agreement between Tribunal decided that there wasn’t arbitration agreement between the Claimant and the Respondent. One of the reasonings invoked the Claimant and the Respondent. One of the reasonings invoked by Respondent was the following: “the extension of the arbitration by Respondent was the following: “the extension of the arbitration agreement to a non – signatory would be contrary to public policy agreement to a non – signatory would be contrary to public policy for the purposes of the 1958 New York Convention because it would for the purposes of the 1958 New York Convention because it would contravene the right, guaranteed by Article … of the Constitution of contravene the right, guaranteed by Article … of the Constitution of State X, of access to the Courts” (see State X, of access to the Courts” (see final award in ICC case final award in ICC case no.10758/2000,no.10758/2000,inin Extracts from ICC Awards Relating to the Extracts from ICC Awards Relating to the Extension of Arbitration Agreements to Non-Signatories,Extension of Arbitration Agreements to Non-Signatories, in in ICC ICC Bulletin, vol.16, second issue, 2005, Bulletin, vol.16, second issue, 2005, at 87-94). at 87-94).

VII. Brief ConclusionsVII. Brief Conclusions

Serving in international arbitration means Serving in international arbitration means mainly to adapt the legal concepts to the mainly to adapt the legal concepts to the needs of economic background. Such needs of economic background. Such adaptation requires not only legal adaptation requires not only legal knowledge, but to be in the middle of the knowledge, but to be in the middle of the business life. As well, such adaptation business life. As well, such adaptation requires to adapt the meaning of the requires to adapt the meaning of the bindness of the arbitration agreement and, bindness of the arbitration agreement and, why not ?, to adapt yourself. why not ?, to adapt yourself.