212 / 521
Art. 71 et seq. CPC is comprised of provisions governing the
power of attorney. Art. 72 CPC states that the former Code of
Obligations no. 818 (“Former CO”) provisions
3
shall apply to powers
of attorney. The subsequent provisions regulate both the scope of a
power of attorney and matters that require specific authority in proce-
dural law. Art. 74 CPC foresees that an attorney must be specifically
authorized in order to realize certain actions, which include “
con-
clud[ing] an arbitration or arbitrator agreement”
. Therefore, a gener-
ic power of attorney is insufficient unless it expressly authorizes the
attorney to conclude arbitration or arbitrator agreements.
The TCO regulates the power of attorney, its establishment, scope
and effects in its Art. 502 et seq. Art. 504/3 TCO also states that a
proxy may not realize certain transactions, unless specifically autho-
rized for such transaction in the power of attorney. “
Refer[ring] to the
arbitrator
” falls within the scope of those transactions that require spe-
cific authority to be provided in a power of attorney.
The above statutory provisions thus provides for limits to the gen-
eral representative authority of voluntarily appointed proxies to con-
clude arbitration agreements. A representative may not realize certain
specific transactions on behalf of its principle that includes the execu-
tion of an arbitration agreement, based on a generic power of attorney,
which does not provide specific authority for such actions.
Legal Persons
Real persons realize transactions on behalf of themselves person-
ally. Legal entities, on the other hand, act through their bodies, who
realize transactions on behalf of the legal entity. The transactions real-
ized by the bodies of a legal entity are deemed to be made by the legal
entity itself, rather than through proxies. Therefore, persons forming
the bodies of legal entities, who are authorized to act on behalf of the
legal entity, do not act as representatives, but the principal legal entity
itself. Thus, specific authority is not required for the board of directors
of a joint stock company or a manager of a limited liability company
to conclude arbitration agreements.
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NEWSLETTER 2014
3
The Former CO to which Art. 72 CPC refers was abrogated by and replaced with the TCO.