Izvorni znanstveni članak
Institute of Written Confirmation in International Commercial Law and the So-Called „Silent Arbitration Agreement“ in Commercial Relations According to the Law on Arbitration
Petar Miladin
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The institute of written confirmation (Bestätigungsschreiben) does not have the same legal status in domestic and international commercial law. The author discusses the status of the institute of written confirmation in comparative law. Reasons why the institute of written confirmation in commerce does not have the force of international commercial custom is explained.The standpoint is defended according to which the application of the institute of written confirmation in international commercial law, and consequently in international arbitration, depends on the parties' nationality and the question of whether a contested transaction was directly carried out in a state whose law is otherwise applicable to the contractual relationship. The author also tries to explain the Articles 6, paragraph 3 of the Law on Arbitration according to which a trade agreement on arbitration can, exceptionally (in two cases) , be considered to have been made although it was not agreed upon in a written form. The author criticises the widespread view according to which the latter represents a simplified „making“ of arbitration agreement by silence.The exception to the Article 6 paragraph 3, provision 2 of the Law on Arbitration is explained by means of the institute of written confirmation, therefore according to rules on liability based on the relationship of trust rather than according to the basic commercial legal concept of obligatory legal liability. Like any other agreement, arbitration agreement can be the object of the institute of written confirmation. It is claimed that the application of Article VII , paragraph 1 of the Convention. on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Arbitration Convention) can replace the lack of a written form of arbitration agreement by the institute of written confirmation although the country of recognition and execution of foreign arbitration awards does not recognise constitutive effects of this institute at all, or recognises them restrictively, i.e. either does not recognise constitutive effects of arbitration agreement based on the rules of written confirmation institute.
Ključne riječi
arbitration agreement; tacite; arbitration agtreement implied by conduct; silence; written confirmation institute; commercial custom
Hrčak ID:
35464
URI
Datum izdavanja:
20.4.2009.
Posjeta: 3.162 *