Background to the guidance
Opinion 106 of 28 June 2019 responds to divergent practice concerning enforcement instruments for arbitral awards against consumers, including applications by microfinance organisations. Some courts considered unfair terms, while others did not treat them as grounds for refusal.
Legal issue
Must a court consider consumer protection on its own initiative when asked to enforce an award? The CSJ connected that issue with the fundamental principles protected by Code Article 485(2) and unfair-terms rules, rather than a general power to retry every contractual dispute.
Conclusion on page 3
The court must examine on its own initiative whether the award infringes consumer-protection requirements relating to unfair terms. If the award imposes obligations arising from such terms, Article 485(2) supplies a ground to refuse the enforcement instrument. Consumer protection is treated as a fundamental legislative principle.
Burden allocation and result
The CSJ contrasts Article 485(1) grounds, which depend on the losing party providing evidence. The act states an advisory legal position; it neither issued nor revoked an individual enforcement instrument. Its conclusion also refers to the ordinary action available after refusal under Article 486(3).
Analytical significance
Limited judicial review requires precision: the prohibition on retrying the dispute coexists with statutory review of public interests on the court’s own initiative. Establish the consumer relationship and specific term before explaining its enforcement significance. See the Moldova guide for the wider route.
General information. The applicable legal framework depends on the particular dispute, seat and enforcement country.