ALBANIA Law and Practice Contributed by: Maksim Haxhia, Artan Hajdari and Eris Hysi, Haxhia & Hajdari Attorneys at Law
3. The Arbitration Agreement 3.1 Enforceability
commercial and proprietary disputes, while preserv - ing mandatory judicial competence in reserved areas. 3.3 National Courts’ Approach Law No 52/2023 adopts a clearly arbitration-support - ive approach. Where a court is seised of a dispute covered by an arbitration agreement, it must, includ - ing on its own initiative, decline judicial jurisdiction unless the arbitration agreement is manifestly invalid. Once arbitration has commenced, a separate court action challenging the validity of the arbitration agree - ment may not be brought. Ambiguity concerning the arbitration agreement or the tribunal’s jurisdiction is interpreted by reference to the parties’ intention to submit the dispute to arbitration. For setting-aside purposes, the validity of the arbitra - tion agreement is assessed under the law chosen by the parties or otherwise applicable to it; in the absence of such a choice, Albanian law is relevant under the statutory review framework. Foreign awards are con - sidered under the New York Convention and the Code of Civil Procedure. The legislation therefore expects courts to give effect to valid arbitration agreements and confines judicial intervention to the circumstances expressly identified by law. 3.4 Validity The rule of separability is expressly recognised by Law No 52/2023. An arbitration clause is treated as sepa - rate and independent from the contract in which it appears. The invalidity of the underlying contract does not, by itself, render the arbitration agreement invalid. This enables the arbitral tribunal to determine dis - putes concerning the existence, validity, termination or consequences of the main contract without losing jurisdiction merely because the contract is alleged to be void. The arbitration agreement may, of course, be challenged on grounds directed specifically at the arbitration agreement itself, such as lack of consent, incapacity, failure to meet mandatory form require - ments or non-arbitrability. Separability therefore pro - tects the parties’ procedural agreement while preserv - ing a distinct review of whether that agreement was validly concluded.
As a rule, an arbitration agreement must be in writing. The writing requirement may be satisfied by a clause in a contract or a separate agreement and may also be evidenced through fax, telegram, telex, email or another recordable form of communication or data storage that provides written proof of the agreement. The agreement must identify a dispute or category of disputes capable of being submitted to arbitration and must otherwise satisfy applicable rules on consent, capacity and arbitrability. Law No 52/2023 imposes additional safeguards in specific situations. A consumer arbitration agreement must be personally signed by the parties and must be separate and independent from the underlying agree - ment. Certain ministries, local government bodies, dependent public institutions, autonomous agencies and state-owned companies are subject to statutory approval or consent requirements before entering an arbitration agreement. Exceptionally, a defect in writ - ten form may be cured where arbitration begins and the other party does not object to the tribunal’s juris - diction. 3.2 Arbitrability The Albanian Arbitration Law adopts a broad concept of arbitrability for proprietary disputes. Any property claim or demand arising from a property relationship may generally be referred to arbitration. This includes contractual and non-contractual civil or commercial disputes with an economic character. The principal limits arise where special legislation prohibits arbitration, permits it only subject to spe - cific conditions, or reserves the subject matter to the exclusive jurisdiction of the Albanian courts. The parties may agree to arbitrate even after court pro - ceedings have begun, but not in respect of matters falling within exclusive court jurisdiction. Arbitrability is therefore assessed by examining the nature of the right or claim, the applicable special legislation and any exclusive-jurisdiction rule. A non-arbitrable sub - ject matter may lead to the setting-aside of an Alba - nia-seated award or refusal of recognition of a foreign award. The approach is thus generally permissive for
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