Over the years various stances and conflicting case law can be found on the subject of whether the court of arbitration retains its jurisdiction in the event of an assignment of a claim to settle disputes between the debtor and the assignee of the claim under an arbitration clause concluded between the debtor and the original creditor. However, these controversies are overcome by the General Assembly of the Commercial Chamber of the Supreme Court of Cassation (“The General Assembly”) with its Interpretative Resolution No. 1/2023 of 21.02.2024 (“The Resolution”).
Arguments in favour of both stances are addressed in the Resolution. According to the first one, since the arbitration clause is relatively independent in nature with regard to the agreement in which it is incorporated, it should be subject to a separate legal regime and, therefore, in the case of an assignment, the court of arbitration shall have no jurisdiction to settle a dispute concerning the assignee who is not a party to the arbitration clause.
The second position, adopted by the General Assembly, states that the jurisdiction of the court of arbitration shall be retained after an assignment of the claim. In the Resolution this stance is based on the fact that although the arbitration clause is autonomous as provided in the legal framework, it is still dependent of the right, whose protection it provides. In order for the arbitration agreement to exist, there must be an existing substantive legal relationship in respect of which there is or may arise a dispute – in this regard, the arbitration clause serves the claim and must be treated as a belonging of the transferred right despite its independent procedural nature. The General Assembly also finds that, given that the choice of court of arbitration is not made with regard to the creditor’s personality, but with regard to the credibility of the chosen court, there is no reason why the arbitration agreement should not be transferred when the claim is assigned – in the absence of an explicit legal provision introducing such a restriction. The preservation of the arbitration clause also guarantees the predictability of the relations between the parties to the substantive legal agreement, as it is known to them in advance and they anticipate that the resolution of their disputes will be carried out by the chosen court of arbitration. On the contrary, if it is accepted that the arbitration clause can not be transferred along with the assigned claim, the original creditor could unilaterally, by assigning the claim, derogate from the arbitration clause incorporated in the contract despite and independently of the debtor’s will, thereby potentially worsening his position.
Based on these arguments laid out in the Resolution, the Supreme Court of Cassation holds that with the assignment of the claim to a new creditor and the notification of the debtor of the assignment, the arbitration clause included in the substantive agreement remains in force in the event of a future dispute between the assignee and the debtor, as long as it is validly concluded and capable of producing legal effect.
The full text of the Resolution can be read here.
