The Supreme Court of Cassation ("SCC") issued Interpretative Decision No. 1/2023 of 21 February 2024 providing an answer to the question whether in event of transfer of receivable by assignment (cession), it automatically passes to the new creditor altogether with the arbitration clause (if such clause was originally included in the contract between the debtor and the previous creditor).

The answer to the question posed is affirmative - the SCC upholds that in the case of an assignment, the arbitral court chosen by the parties remains competent to review and decide on potential disputes between the new creditor (the assignee) and the debtor pursuant to the arbitration clause concluded between the "old" creditor (the assignor) and the debtor. This means that no new arbitration agreement needs to be concluded between the assignee and the debtor.

The main argument underlying the position adopted by the SCC is that the arbitration clause, although theoretically considered a separate procedural contract, is an affiliation to the assigned receivable. According to the law, all affiliations to the receivable (for example, securitizations) pass to the assignee. Respectively, the assignee is not obliged to re-establish them or seek the debtor's consent.

In its reasoning the SCC also stresses that the choice of an arbitral court is not made in view of the personality of a particular creditor, but because of the credibility of a particular arbitration institution, and that it is possible that the very arbitration clause was crucial for the new creditor (the assignee) to acquire the receivable at all.

The cited Interpretative Decision the SCC answers as well another question related to arbitration agreements, namely - whether if a person is authorized to conclude a certain contract, an explicit (separate) authorization is also necessary for the acceptance of the arbitration clause in the same contract.

On this issue the standpoint of SCC is that for the conclusion of an arbitration agreement which is part of a contract (in the form of an arbitration clause), authorization for the conclusion of the contract itself is sufficient. Respectively, an explicit authorization for accepting the arbitration clause in the same contract is not required.

The Supreme Court judges justified their position by the fact that the legislation does not envisage an obligation for explicit authorization for the conclusion of an arbitration agreement in such a hypothesis. It is also pointed out that there are sufficient mechanism in the law to ensure that the authorizer's interest will be preserved even if they have not explicitly authorized their proxy to enter into an arbitration agreement - for example, the provision of Article 40 of the Obligations and Contracts Act which states that if the proxy and the person with whom he is negotiating agree to the detriment of the represented person, the contract shall have no effect for the latter.