Arbitration

Romania is a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which has been in force since 1961. Romania has made declarations to the Convention. The Convention applies only to contractual or non-contractual disputes that are deemed commercial by Romanian legislation. The Convention also applies to arbitral awards issued in non-contracting states based only on reciprocity established by the parties’ agreement.

Romania is also party to the European Convention on International Commercial Arbitration instituted at the United Nations, Geneva, on 21 April 1961, ratified by Decree No. 281, 25 June 1963, and of the Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States, 18 March 1965, ratified by Decree No. 62, 30 May 1975.

Back to top

As of 2017, Romania has entered into 93 bilateral investment treaties, of which 88 are in force. Also, on 24 March 2017, Law No. 18/2017 entered into force whereby the cessation by mutual agreement or by unilateral termination of 22 bilateral investment treaties concluded with EU member states was approved. The Ministry of Foreign Affairs of Romania is empowered to publish in the Official Gazette the date when the bilateral investment treaties are to cease or to be terminated.

Back to top

At national level, the general legal framework for domestic and foreign arbitral proceedings is contained in the New Civil Procedure Code (NCPC) (in force since 15 February 2013), articles 541 to 621 (Book IV - About Arbitration) and articles 1111to 1133 (Book VII - The International Civil Proceedings, Title IV - The International Arbitration and the Effects of Foreign Awards). At an institutional level the Rules on Arbitral Proceedings of the International Court of Commercial Arbitration attached to the Romanian Chamber of Commerce and Industry applicable as of 5 June 2014) (hereinafter referred to as the Rules of the Court of Arbitration) are the most well known and applied. In addition, for international disputes submitted to arbitration in Romania, the provisions of international conventions ratified by Romania will also apply. The recognition and the enforcement of arbitral awards is regulated by the NCPC, in articles 1124-1133 from Book VII, Title IV - The International Arbitration and the Effects of Foreign Awards, Chapter II - The Effects of Foreign Awards.

According to Romanian civil procedure, as well as to the Rules of the Court of Arbitration, an arbitral dispute is considered to be international if it results from a legal relationship with foreign elements (eg, if one party to the dispute is of foreign nationality or if the contract or the asset referring to the dispute is, or is likely to be, governed by one or more laws of different states).

Arbitration is considered to be foreign when the arbitral award is delivered on a foreign territory and the said arbitral award is not deemed a national award in Romania.

Back to top

Domestic arbitration is regulated under articles 541 to 621 of the NCPC, while international arbitration is regulated under articles 1111-1133 of the same NCPC.

To a quite large extent, the domestic arbitration provisions bear some resemblance to the UNICTRAL Model Law, especially after the entry into force of the NCPC. For instance, it is expressly mentioned that, in the case of an international arbitration, the arbitral tribunal can issue partial awards, as long as a contrary provision is not included in the arbitration agreement.

However, as compared to the UNCITRAL Model Law, the Romanian provisions do not regulate in a detailed manner the regime of interim measures and preliminary orders. Nevertheless, there are rules that allow the parties to request the application of interim measures, as well as to separately challenge, by means of a claim for annulment, the arbitral awards by which interim measures were adopted.

In any case, there is nothing that prevents the parties, in the case of non-institutionalised (ad hoc) arbitration to incorporate the UNCITRAL Model Law into their arbitration agreement.

Back to top

The parties may not derogate from the rules regarding public policy, morality and the mandatory provisions of the law. Mandatory provisions from which the parties cannot deviate are, inter alia, the following:

• the clause by which a party nominates an arbitrator in lieu of the other party or by which it appoints a higher number of arbitrators than the other party is null and void;
• the parties are not entitled to waive their right to challenge the arbitral award, by inserting a clause in respect thereof in the arbitration agreement; and
• the arbitration proceeding must ensure the equality of treatment, the right to defence and the audiatur et altera pars principle. Conversely, the award is subject to annulment.

Back to top

The Romanian Civil Code - which entered into force 1 October 2011 - sets forth the general rules in this matter and provides that the law applicable to substantive requests of an international private law contract is established by the parties to the said agreement. Also, under the Rules of the Court of Arbitration, in an international arbitration, the parties can determine the substantive law applying to their arbitral dispute.

If the parties fail to establish the substantive law, the arbitral tribunal shall determine the substantive law based on the rules of conflict of laws. Such rules are mainly provided in the New Civil Code, under articles 2557 to 2663, as well as in Regulation No. 593/2008 of the European Parliament and of the Council on the Law Applicable to Contractual Obligations (Rome I) and in Regulation 864/2007 of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations (Rome II). In addition, conflict of laws rules are included in Book VII, title IV of the NCPC. For instance, in the particular case of international arbitration agreements (provided that the seat of the arbitral tribunal is in Romania), the NCPC stipulates the validity of the arbitration agreement from the perspective of the substantive requirements, if it fulfils the conditions imposed by one of the following laws: the law established by the parties; the law governing the object of the litigation; the law applicable to the contract that contains the arbitration clause and the Romanian law.

Back to top

Under Law No. 335, 3 December 2007, the permanent non-corporate arbitration institution is the Court of International Commercial Arbitration attached to the Romanian Chamber of Commerce and Industry (Court of Arbitration).

Court of International Commercial Arbitration

The Chamber of Commerce and Industry of Romania

2 Octavian Goga Blvd

3rd district

Bucharest

Romania

http://arbitration.ccir.ro/engleza/index.htm

Arbitration courts exist, but their activity is reduced, at the level of the local chambers of commerce and with the same rules of arbitration proceedings as the Court of Arbitration.

Also, there are arbitration courts attached to the bilateral chambers of commerce established by the business community.

Back to top

As regards international arbitration, the NCPC states that any cause of a patrimonial nature can be submitted to arbitration if it concerns rights in relation to which the parties can freely dispose, and provided that the law of the state where the arbitral tribunal has its seat does not reserve exclusive jurisdiction for the national courts. In principle, only pecuniary disputes can be referred to arbitration for domestic arbitration. However, there are some pecuniary disputes excluded from the arbitral proceedings. For instance:

• IP disputes concerning the annulment of a trademark, a patent, designs, etc, or the author of a creation subject to copyright are given in the exclusive competence of courts of law;
• as far as antitrust and competition laws are concerned, the disputes on the lawfulness of the Competition Council’s decisions are reserved to the court of law. However, the parties may refer to an arbitration dispute concerning damages arising from a breach of competition law or, in the case of a contractual dispute, one party may raise competition issues in connection with the validity of some clauses and the arbitral tribunal will retain jurisdiction in order to assess such matter; and
• intra-company (corporate law) disputes are reserved to the courts of law as per the provisions of Law No. 31/1990 on Companies.

Back to top

As a general rule, the arbitration agreement must be concluded in writing. However, this requirement is considered to be fulfilled if the parties agreed to arbitration by means of an exchange of correspondence, irrespective of its form, or by an exchange of procedural acts, as well as if the defendant expressly accepts the jurisdiction of the arbitral tribunal, either by written statement or by express statement recorded by the arbitral tribunal. In addition, the NCPC expressly states that arbitration agreements that refer to litigations related to the transfer of an ownership right or the creation of another property right over an asset must be concluded in an authentic notarised form, under the sanction of absolute nullity (NCPC article 548).

Local or state entities can conclude an arbitration agreement to the extent that a special provision - either domestic or international - allows them to do so.

The model for the arbitration agreement provided by the Court of Arbitration refers only to disputes that arise from the agreement containing an arbitration clause or by a separate agreement (compromise). Also, the arbitration agreement may result from the mutual agreement of the parties in dispute, expressed in front of the arbitration panel. The Rules of the Court of Arbitration provide for the principle of separability of an arbitration agreement from the main contract and its full effect regarding the competence of the arbitral tribunal (except for the cases when the matter in dispute is not arbitrable).

Under the NCPC (article 550(1)), the arbitration clause must include a reference regarding the manner of nomination of the arbitrators, under the express sanction of nullity. However, in the case of institutional arbitration, such references are not mandatory, considering that the law allows a reference to the procedural norms of the institution that organises the arbitration. It is also worth mentioning that arbitration agreements must be concluded with the observance of the conditions provided for the validity of agreements in general, namely: the existence of the capacity of the parties to conclude the agreement; the parties’ consent; and a valid object and a valid cause of the main contract.

Back to top

According to Romanian law, an arbitration agreement is no longer enforceable for the following reasons:

• the institution organising the arbitration fails to comply with the minimum requirements of article 6 from the European Convention on Human Rights;
• the arbitral tribunal cannot be constituted because of the defendant’s obvious default; or
• the proceedings before courts of law were initiated and the defendant raised no objection on jurisdiction.

Back to top

A third party can be bound only to the extent that it is party to the arbitration agreement. In several cases, parties different from the signatories may be bound by an arbitration agreement:

• if the underlying contract was assigned to a third party in accordance with the rules set out in the NCPC;
• the assignee of a claim is bound by the arbitration agreement by virtue of the accessorium sequitur principale rule; or
• in case of inheritance, the heirs and legatees of a party contracting to an arbitration agreement are bound by such a clause.

Back to top

According to the NCPC, third parties can participate to the arbitration proceedings only with their consent as well as the consent of all the parties to arbitration, with the observance of the general rules governing third-party participation in disputes. According to these general rules, any person who has a substantive interest can intervene in a dispute initiated between other parties. However, in the case of an accessory intervention - which refers to cases when a third party does not raise its own right derived from the dispute, but only supports the defence of one of the parties - the third-party participation is allowed in arbitration even without the consent of the initial parties.

In the case of arbitration disputes falling under the Rules of the Court of Arbitration, third parties can participate to arbitration proceedings under the general provisions provided by the NCPC in respect to third-party participation, if such participation is possible on the basis of the arbitration agreement or if the effects of the arbitration agreement between the parties to the dispute can be extended to other participants.

Back to top

The arbitral tribunal refrains from using the ‘group of companies’ doctrine in view of extending an arbitration agreement to non-signatory companies. In other words, to the best of our knowledge, the group of companies’ doctrine is not recognised in the Romanian jurisdiction.

Back to top

Romanian law is silent in this respect. However, the requirements for executing an arbitration agreement (see question 9) remain applicable for such cases as well.

In addition, regarding the nomination of arbitrators, according to the Rules of the Court of Arbitration, if there are more plaintiffs or defendants, the parties having mutual interests will designate a sole arbitrator. In case the parties fail to agree on this appointment, the sole arbitrator will be designated by the president of the Court of Arbitration.

Back to top

In accordance with article 555 of the NCPC, any natural person who has an unrestricted exercise of its rights can be an arbitrator. In addition, in the case of institutional arbitration, if the rules on the organisation and functioning of the Court of Arbitrationwill be applicable, any person - whether a Romanian or a foreign national - can be arbitrator, if he or she has an unrestricted exercise of his or her rights, enjoys of an excellent reputation and is highly qualified in the field of international private law, internal and international economic relations and commercial arbitration.

As a general rule, the arbitrators are included on a list of arbitrators selected by the Court of Arbitration. In order to be included in the list of arbitrators, a person must, among other things, have a solid legal background and at least eight years’ experience in the legal field. However, even in the case of arbitrations organised by the Court of Arbitration, persons who are not included on the list of arbitrators can act as arbitrators if the parties under dispute nominated these persons in the arbitration agreement, in a specific dispute, under the condition for these persons to meet the requirements set forth by the arbitration rules of the Court of Arbitration.

Acting judges cannot be arbitrators.

The NCPC, as well as Rules of the Court of Arbitration, provide that an arbitrator cannot solve a specified arbitral dispute if he or she does not observe the qualification requirements or other conditions regarding the arbitrators, which are set forth in the arbitration agreement. Nonetheless, the law is silent as regards the possibility of accepting contractual requirements for arbitrators, based on nationality, religion or gender.

To our knowledge, no other criteria than those specified by law and arbitral rules apply to selecting an arbitrator.

Back to top

As a general rule, any person enjoying the full capacity of his or her rights may act as an arbitrator. The Rules of the Court of Arbitration provide under article 4(4) that any Romanian or foreign citizen may act as an arbitrator where he or she enjoys the full capacity of rights, does not have a bad reputation, and has considerable skills and experience in the field of private law, domestic and international economic relations, and commercial arbitration.

Persons holding certain official positions within Romania are prevented from sitting as arbitrators. For example, acting judges or prosecutors cannot act as arbitrators.

Practising lawyers and law professors are regularly appointed as arbitrators in Romanian jurisdiction. Retired judges may also be found on the panels of the arbitral tribunals.

As far as gender diversity in institutional appointments is concerned, we do not know of any initiatives to promote gender diversity. In practice, the majority of arbitrators are male.

Back to top

Under the rules of the NCPC, the names and the number of arbitrators must be indicated in the arbitration agreement. If the parties fail to agree on the arbitration agreement, they can establish this subsequently. If the parties fail to nominate the sole arbitrator, including cases when the arbitral tribunal is composed of more arbitrators and one of the parties does not nominate its party-appointed arbitrator or the two party-appointed arbitrators do not agree on the nomination of the chairman of the arbitral tribunal, the party that wishes to be part of the arbitration proceedings is allowed to request to the competent domestic courts to proceed to the nomination of the sole arbitrator or of the chairman.

Under the Rules of the Court of Arbitration, if the arbitrators were not designated by the arbitration agreement, the parties can subsequently agree upon, either in the request for arbitration and the defendant’s answer or by a separate exchange of documents between the parties. At the request of a party, the arbitrator can be nominated by the president of the Court of Arbitration. If the arbitral tribunal is composed of three arbitrators, the chairman will be nominated by the party-appointed arbitrators. In addition, if the parties or the party-appointed arbitrators fail to agree on the nomination of the sole arbitrator or of the chairman, the president of the Court of Arbitration is competent to designate them.

Back to top

In arbitration institutionalised under the Rules of the Court of Arbitration, an arbitrator can be challenged on grounds that question his or her independence and impartiality, and which qualify the arbitrators as incompatible, such as: non-observance of the cases of incompatibility that are set forth in the NCPC for the judges active in the courts of law (for instance, in case the arbitrator acted as witness or expert in the same dispute or in case the arbitrator is a relative of one of the parties or their representatives etc); non-observance of qualification conditions or other conditions related to arbitrators that are set forth in the arbitration agreement; or existence of a labour or work relationship or of direct commercial connections between the arbitrator or one of the parties. Similar grounds related to the incompatibility of the arbitrators are provided in the NCPC.

In the particular case of bias or an appearance of bias, an arbitrator can be challenged by the concerned party and its request will be settled. The standard of bias or appearance of bias that might give grounds for challenging an arbitrator is the same as in the case of judges as developed by the case law of the courts of law, which takes guidance from the judgments of the European Court of Human Rights. In some disputes, guidance is also sought from the IBA Guidelines on Conflicts of Interest in International Arbitration.

The replacement of an arbitrator may occur in the case of challenge, abstention, resignation (for cause of illness, for example), death or other impediments.

The challenge request is settled by the arbitral tribunal without the attendance of the challenged arbitrator, who is substituted by the president of the Court of Arbitration or by an arbitrator designated by the latter. If the challenge concerns the sole arbitrator, it will be settled by the president of the Court of Arbitration or by an arbitrator designated by him.

In non-institutionalised (ad hoc) arbitration, an arbitrator can be challenged on the grounds set forth in the NCPC regarding the judges active in the court of law, on the special grounds set forth in relation to the incompatibility of arbitrators, as well as on the lack of requirements as set out in the arbitration agreement. The challenge request is settled by the competent court of law with the attendance of the parties and of the challenged arbitrator.

Back to top

In institutional arbitration under the Rules of the Court of Arbitration, the arbitrators are, as a general rule, appointed by the parties. Only if the parties fail to agree upon, will the arbitrators be designated by the president of the Court of Arbitration.

The fees of the arbitrators are included in an arbitration tax, calculated by the secretariat of the Court of Arbitration. Any arbitrators’ expenses occurring during the pending dispute are borne by the parties.

In the case of a non-institutionalised (ad hoc)arbitration, the arbitral tribunal shall determine the due fees and may compel the parties to pay them in advance and, with regard to the expense occurred during the dispute, the arbitral tribunal shall assess whether or not all parties will bear those expenses.

Back to top

Under the Rules of the Arbitration Court, the arbitrators can be dismissed if:

• after acceptance, they waive their appointment in an unjustified manner;
• for groundless reasons, they do not attend the arbitral dispute proceedings, perform other actions that are of such a nature as to unjustifiably delay the proceedings or fail to deliver the award by the deadline as set out in the arbitration agreement or by the law; and
• they fail to observe the confidentiality of the arbitration by publishing or disclosing information known in their capacity as arbitrators, without the parties’ prior authorisation.

If the above-mentioned actions are performed in bad faith or because of serious negligence, the arbitrators can be held responsible and pay damages within the limit of the received arbitration fees.

Accordingly, under Romanian law, it can be argued that the arbitrators can be held liable both for negligence or intentional breach of duties.

Back to top

In such a case, each party may challenge the court’s jurisdiction and the court will verify its own competence and consequently state that it lacks jurisdiction in that case. As a general rule, at the first hearing, when the parties are legally subpoenaed before the first court, the judge is compelled to verify its own jurisdiction, as well as to discuss the objections on jurisdiction raised by the parties. However, if the defendant submits his or her statement of defence without raising any objections regarding the jurisdiction, the court of law will retain jurisdiction. In addition, the court of law will retain jurisdiction if the arbitration agreement is affected by nullity or is not operant, as well as if the arbitral tribunal cannot be constituted because of reasons that are obviously determined by the plaintiff in the arbitration. Similarly, in the case of international civil disputes, the NCPC states that, if the parties concluded an arbitration agreement regarding litigation that is arbitrable according to Romanian law, the national court will state that it lacks jurisdiction, unless the defendant did not raise an objection on jurisdiction grounded on the arbitration agreement until the first hearing when he or she was legally subpoenaed.

In case both the court of law and the arbitral tribunal consider they have jurisdiction over a dispute, the arisen conflict of competence will be settled by the superior court of law to the one involved in the conflict of competence.

Back to top

The arbitral tribunal verifies its jurisdiction either ex officio or at a party’s request and it will deliver a decision in this respect (‘competence-competence’). The verification of the jurisdiction by the arbitral tribunal takes place at the first hearing when the requirements of procedure have been legally complied with (such as legal subpoenas transmitted to the parties, payment of arbitral fees, etc). In case the arbitral tribunal declares that it has jurisdiction, the concerned party may only challenge such a decision by means of the motion to set aside the award itself. In case the arbitral tribunal declares that it does not have jurisdiction, its competence is declined in favour of the court of law and such decision of the tribunal cannot be challenged with a motion for setting aside the award.

As far as international arbitration is concerned, the NCPC provides that the arbitral tribunal will decide its own jurisdiction, without taking into account other pending claims before the same parties and having the same object, except for situations when grounded reasons result in the proceedings being held in abeyance. The jurisdictional objections must be raised prior to any defence on the merits of the case.

Under the Rules of the Court of Arbitration, at the first hearing the parties must answer to the arbitral tribunal if they have objections to its jurisdiction.

Back to top

The Court of Arbitration may organise institutional arbitration under its rules of arbitration or may assist the parties in ad hoc arbitration. In the first case, the place of arbitration is at the headquarters of the Court of Arbitration. However, as an exception to this rule, if the parties request to the arbitral tribunal, based on grounded reasons, to organise the hearings in a different place, the arbitral tribunal can agree to such request under the conditions that the costs incurred to be borne by the parties.

The language of the institutional arbitration proceedings is Romanian and all the documents must be translated into Romanian.

However, in the case of international arbitration, the documents can also be presented in a language of international use. As far as international arbitration is concerned, the proceedings shall be held in Romanian, in the language indicated in the arbitration agreement or, in case no reference was provided in this respect or no agreement on this issue was subsequently concluded, the proceedings may be held in a language of international use set forth by the arbitral tribunal.

As far as non-institutionalised (ad hoc) arbitration is concerned, the place of arbitration shall be determined by the parties and, where they fail to establish it, by the arbitral tribunal. In the particular case of international arbitration, the place of arbitration is established by the parties or by the arbitration institution indicated by them and, in case of failure to do so, by the arbitrators. The parties are free to decide on the language of the arbitration, either in the arbitration agreement or separately; in the alternative, the language of arbitration will be the language of the contract out of which the dispute has arisen or a language of international circulation indicated by the arbitral tribunal.

Back to top

The arbitral proceedings are initiated by the plaintiff, who submits the request for arbitration. The request must be made in writing and must contain the identification data of the parties and of their attorneys, the object of the request and its value, the factual and legal merits of the case, as well as the evidence on which the request is grounded, the arbitration agreement with a copy of the corresponding contract, the signature and the stamp of the parties, as the case may be. The request for arbitration should also identify the members of the arbitral tribunal.

The request must be submitted in a number of copies sufficient to be communicated to each and every party and for each of the members of the arbitral tribunal.

Under the Rules of the Court of Arbitration, the request for arbitration and the attached exhibits are submitted in hard copies, in as many counterparts as the number of defendants, each of the arbitrators and an additional one for the arbitration file. The communication of these documents is also made in electronic format. The term of arbitration starts from the date when the arbitrator (the arbitrators) accepted his or her appointment by giving a written declaration of acceptance.

Back to top

According to the rules of the NCPC, the arbitral tribunal normally organises a hearing at least for the parties’ debates, based on the general principle of procedural law, which states that disputes shall be debated orally. The parties can attend such a hearing personally, represented by their attorneys or assisted by any person. Nonetheless, any of the parties can require in writing that the settlement of the dispute be made in its absence, on the basis of the evidence in the file.

The Rules of the Court of Arbitration contain provisions about hearings but fail to state in an express manner if such a hearing is a requisite. However, according to the same rules, the arbitral tribunal is allowed to agree that certain stages of the proceedings be accomplished by means of written or electronic correspondence, with the exception of the hearing of witness and experts and the final pleadings on the merits of the case. Therefore, the conclusion could be drawn that, at least in these cases, a hearing is required. The parties can attend such a hearing personally or be represented by their attorneys, counsel or by any other person and be assisted by interpreters.

Back to top

Each party must prove the facts in connection with its claims or defences. The types of evidence are those prescribed by the common law, namely the NCPC (witnesses, experts, documents, inspection by the arbitral tribunal and cross-examination). Nevertheless, the parties retain the freedom to agree upon the evidence and upon their administration.

Regarding the experts, they are either appointed by the parties or, failing that, by the arbitral tribunal. Each party can appoint a side expert.

The experts and the witnesses are not cross-examined under oath.

The parties or the representatives of legal entities’ parties may be subject to examination.

In case of international arbitration, the Rules of the Court of Arbitration, in article 81, allow the arbitral tribunal to apply IBA rules on the taking of evidence to the extent the parties agreed to this end.

Back to top

Generally, pursuant to article 547 of the NCPC, the court intervenes in order to remove the obstacles in commencing or deploying the arbitration proceedings or for performing other powers that fall under the court’s competence. For instance, the court intervenes in the following situations:

• the arbitral tribunal cannot be constituted, in case of ad hoc arbitration;
• before or during arbitration proceedings, the court, by request, is asked to take interim or provisional measures;
• a party opposes the interim measures taken by the arbitral tribunal during arbitration proceedings; and
• in order to apply sanctions to the expert or to the witnesses, or if a public authority fails to respond to an information request received from the arbitral tribunal.

The referral shall be settled in an emergency procedure by the court and the judgment is not subject to any appeal.

Back to top

The arbitral file and the proceedings are confidential and the arbitrators and all the staff of the Court of Arbitration are bound by the obligation of confidentiality. The complete award can be published only with the parties’ approval. The enforcement file is also confidential, but certain proceedings must be made publicly.

Back to top

Before the initiation of the arbitration proceedings, only the competent court may order interim measures (conservatory and interim measures related to the dispute matter or measures regarding the finding of the facts). Such measures may regard, for instance, the conservation of evidence, seizure over opposing parties’ assets or over the assets in dispute.

During the arbitral proceedings, such measures can be ordered either by the arbitral tribunal or by the court of law. If a party opposes the measures taken by the arbitral tribunal, then the enforcement shall be conducted by the court of law.

Back to top

As of the date hereof, both the NCPC and the Rules of the Court of Arbitration are silent as far as any interim measures by an emergency arbitrator are concerned. However, the Court of Arbitration has called for public debates on a draft of new set of rules of arbitration. This draft introduces in the Romanian jurisdiction the emergency arbitrator prior to the constitution of the arbitral tribunal.

Back to top

A constituted arbitral tribunal may order conservatory and interim measures related to the dispute matter or measures regarding the finding of the facts. The enforcement of such measures can be assured with the assistance of the courts of law.

As stated in question 30, the arbitral tribunal may decide on measures regarding the conservation of evidence, seizure over opposing parties’ assets or over the assets in dispute. In domestic arbitration and in certain situations, such measures are conditioned upon presenting a bail by the requesting party.

In international arbitration, as per the NCPC, it is stated that the arbitral tribunal may order interim measures, unless the contrary is stated in the arbitration agreement. If not, then the arbitrator may condition the measure upon presenting a bail by the requesting party. The purpose of the bail is to secure the possible damages the party might incur from ordering the interim measures.

Back to top

Under both the NCPC and the Rules of the Court of Arbitration the arbitral tribunal has no power to order sanctions against the parties or their counsel where it deems that ‘guerrilla tactics’ were used. Nevertheless, nothing prevents the arbitral tribunal from recording into the minute the guerrilla tactics used by the parties or their counsel and for the concerned party to follow and rely on the provisions set forth by article 547 of the NCPC, to eliminate the procedural difficulties created in such circumstances. As far as the second question is concerned, under no circumstances may the arbitral tribunal or domestic arbitral institution sanction the counsel. If the procedural rules or the professional ethics were violated, the party concerned may resort to the provision of article 547 and ask the ordinary courts to eliminate the difficulties created in such circumstances, or they may refer the situation to the professional organisation to which the counsel belongs, which may trigger the disciplinary liability of the counsel.

Back to top

Under both the rules of the NCPC, primarily article 602(3) and of the Rules of the Court of Arbitration, article 65(1), decisions can be issued by a majority of the arbitral tribunal members. Unanimity is not required. Dissenting opinions are accepted.

Back to top

The arbitrator that has a dissenting opinion must prepare and sign a separate opinion, attached to the arbitration award (article 65, Rules of the Court of Arbitration). Concurrent opinions are also provided by the same rules.

Back to top

The award is issued in writing and must contain the following information:

• the names of the arbitrators and the arbitral assistant (if applicable), the place and delivery date of the award;
• the name of the parties, their domicile or residence or, as the case may be, the denomination and headquarters, the name of the representatives, as well as other parties attending the debates;
• the arbitration agreement;
• the dispute and the parties’ arguments;
• the de facto and de jure reasons of the award, and in case of ex aequo et bono arbitration, the reasons that support the conclusion of the arbitral tribunal;
• the court decision (disposition); and
• the signatures of all arbitrators, with the observance of those provided in article 602(3) of the NCPC, and, if applicable, the signature of the arbitral assistant.

Back to top

Under the Rules of the Arbitration Court, the court decision has to be issued within six months of the constitution of the arbitral tribunal and this term can be extended to a period that is considered necessary for the appropriate dispute resolution, subject to the parties’ express agreement. Caducity (time-bar effect) can be claimed if requested in due time in conformity with the Rules of the Court of Arbitration. As far as the NCPC is concerned, article 605 provides that the arbitral award, setting out its reasoning, shall be served to the parties within one month from when it was delivered.

Back to top

The date of the award is the date when the arbitral tribunal delivers the award and such date is decisive for the following:

• the time limit under which the arbitral tribunal has to render the award; and
• whether the award was delivered with the observance of the deadline set out by the NCPC or of the Rules of the Court of Arbitration.

The date of the service of the award stating the reasons is decisive for the following:

• one or three months, as the case may be, for the motion to set aside the arbitral award;
• the referral for the correction of clerical errors or for the interpretation or completion of the award. The time limit is 15 days under the NCPC and 10 days under the Rules of the Court of Arbitration; and
• the award is to be final and binding.

Back to top

The arbitral tribunal may issue final, interim or partial awards based solely upon the relief sought by the parties in dispute. In domestic arbitration, partial awards may be delivered to the extent that a party acquiesces to the other party’s claims. In international arbitration, the arbitral tribunal may issue partial awards, unless stated to the contrary.

As far as the interim awards are concerned, these can be delivered according to the criteria stated under question 31.

The arbitral tribunal may grant only the reliefs sought by the parties in dispute, provided that such relief is lawful, possible and at least determinable.

Back to top

The arbitral proceedings can be terminated by:

• the settlement of the parties formalised in writing;
• the caducity of the arbitration raised in due time by the concerned party;
• in the case of lapse of proceedings or in the case of claimants’ default to comply with the duties indicated by the arbitral tribunal, but only for arbitration under the Rules of the Court of Arbitration; or
• waiver of the parties to the disputed claims, which has to be formalised in a written statement or recorded by the arbitral tribunal.

Back to top

The costs of the arbitral proceedings are allocated according to the parties’ agreement or, failing such, the losing party will bear its own costs and will be compelled to pay the costs of the winning party in as much as the latter claims were admitted.

The costs of the arbitral proceedings include the registration fee, the administrative fee, costs for the taking of evidence, translation costs, hearing costs, fees of the arbitrators, attorneys, counsels, parties, arbitrators and witnesses, as well as experts’ costs with travelling expenses and other expenses in connection with the arbitration proceedings.

Pursuant to article 43(3) of the Rules of the Court of Arbitration, the arbitral tribunal may compel the party whose fault caused to the opposing party to incur costs to reimburse them as damages.

In international arbitration, pursuant to article 1122 of the NCPC, unless stated to the contrary, the arbitrator’s fees and his or her travelling costs are incurred by the parties who appointed him or her. In the case of a sole arbitrator or of the chairman, the costs are allocated equally between the parties.

Back to top

The arbitral tribunal may award interest for principal claims and for costs. The interest rate shall be that established by the parties or, failing that, the interest rate established by the National Bank of Romania.

Back to top

The award can be corrected ex officio or upon the request of the parties, whereas the interpretation may be decided only based on parties’ request. The time limit for both requests is 15 days starting from the delivery date.

In the case of arbitration under the NCPC, the party concerned may submit a claim for the correction of clerical errors or for interpretation within 10 days of the service date.

Back to top

An award can be challenged only by means of a motion for setting aside on the following grounds:

• the dispute was not subject to arbitration;
• the arbitral tribunal settled the dispute without any arbitration agreement or the arbitration agreement was null and void or not enforceable;
• the arbitral tribunal was constituted with the non-observance of the arbitration agreement;
• the party was not present at the debate hearing and the service was unlawfully made;
• at least one party announced its interest in raising the caducity, the award was delivered after the expiry of the caducity term set out in article 567 of the NCPC and the parties did not agree on continuing the proceeding pursuant to article 568(1) and (2) of the NCPC;
• the arbitral tribunal settled the dispute extra petita or ultra petita;
• the award does not contain the operative part (the court decision) and its reasoning, does not indicate the date and the place of delivering or does not contain the signatures of the arbitrators; and
• the award infringes public policy, morals and the mandatory provisions of the law.

If, after delivering the award, the Constitutional Court issued a judgment on the plea raised in the file, stating the non-constitutionality of the law, the ordinance or the provision from a law or an ordinance that forms the object of the plea or of other provisions from the contested enactment that necessarily and obviously are not to be dissociated from the provisions indicated in the referral to send the plea to the Constitutional Court.

Back to top

The decision on a motion to set aside an arbitral award can be challenged only by an appeal on points of law. For the motion to set aside the judgment, the judicial stamp tax is established based on the value of claims. The appeal on points of law is subject to judicial stamp tax evaluated depending on the indicated ground of appeal.

The period for deciding on a motion to set aside the judgment may vary between six months and two years for each level.

The costs are generally represented by the judicial stamp tax, as the case may be, and by the fees of the attorney.

According to the NCPC, the costs are borne by the losing party, but the court retains the liberty to decide whether the costs are to be entirely reimbursed to the winning party.

Back to top

First, in order to have the awards enforced, leave by the court has to be provided based on an application by the concerned party pursuant to article 1126 of the NCPC. The party may follow either the provisions of the New York Convention or of the NCPC.

Secondly, the principle enshrined in article 1125 of the NCPC is that any foreign arbitral award may be recognised and enforced in Romania insofar as the dispute may be subject to arbitration in Romania, and as long as the award has no provision inconsistent with Romanian public policy. Failure to comply with the two requirements implies a refusal to enforce the award.

Thirdly, as far as other impediments to enforcement are concerned, the NCPC of Romania provides under article 1129 for the following cases when the enforcement of a foreign arbitral award may be hindered:

• the parties were unable to conclude the arbitration agreement, according to their own law, established pursuant to the law of the state where the award was rendered;
• the arbitration agreement was void pursuant to the law elected by the parties or, failing such election, pursuant to the law of the state where the award was rendered;
• the party against which the award is enforced was not duly informed on the appointment of the arbitrators or on the arbitration proceedings or it was unable to defend in arbitral dispute;
• the appointment of the arbitral tribunal or the arbitration proceedings violated the convention of the parties or, failing such convention, the law of the place of arbitration;
• the award deals with a dispute not provided by the arbitration convention or outside the limit set out by such convention or comprises provisions exceeding the terms of the arbitral convention. However, as long as the provisions from the award dealing with the aspects subject to arbitration may be separated from those regarding aspects not subject to arbitration, the former are to be recognised and enforced; or
• the award is not yet binding on the parties or it was set aside or stayed by a competent authority from the state where or pursuant to which it was rendered.

Back to top

An award set aside by a court at the place of arbitration cannot be enforced on Romanian territory.

Back to top

There are no provisions dealing with the appointment of an emergency arbitrator in the NCPC or in the Rules of the Court of Arbitration. However, it cannot be assumed that the parties do not have the freedom to set out rules with regard to an emergency arbitrator. Based on the parties’ agreement, were such an emergency arbitrator appointed, they would rule any provisional measures that may be enforced by ordinary courts of law, if the party that is having provisional measures enforced upon them, opposes it.

Back to top

In enforcing awards, the concerned party may incur, inter alia, the following costs:

• costs of the attorneys;
• fees of the bailiff;
• judicial stamp tax for enforcing the award; and
• other costs that might occur in the case of challenging the enforcement procedure.

Back to top

Generally, in the Romanian judicial system the proceedings are conducted either by a judge or an arbitrator, as the case may be. High observance is granted to the provisions of the NCPC, with the result that written witness statements are not common practice in proceedings and that a party in dispute may be subject to examination, but without the possibility of testifying as witness.

Back to top

A counsel is subject to the rules enacted by the bar to which it adheres. In Romania, the counsels are members of one of the bars composing the National Union of Lawyers. The rules for counsel are comprised in the statute on the lawyer profession issued by the Union. With regard to the fact that the National Union is a full member of the Council of Bars and Law Societies of Europe, the Code of Conduct issued by the latter was adopted by the National Union. Such rules are not specific professional or ethical rules applicable only in case of international arbitration, but rather general rules on the relationship of the counsel with the client, the magistrate and with other counsel. The rules on relations with the magistrate are the same for relations with the arbitrators.

Back to top

Under Romanian Law, neither the NCPC, nor the Rules of the Court of Arbitration contain provisions in relation to third-party funding of arbitral claims.

Back to top

Romania is member state of the European Union and, accordingly, the provisions related to visas and work permits are those indicated by European legislation transposed into the national law. Attorneys from EU member states are also subject to the special regulations enacted in this respect. Attorneys from EU member states may represent and assist parties in arbitration.

Persons from third-party states require residence permits and must adhere to visa requirements, follow formalities with the National Bar Association and are subject to taxes imposed by the National Bar Association and by the tax authority for the performed activity. The activities of the lawyers and arbitrators undertaken on Romanian territory are subject to VAT rules.

Back to top

The rules of the Arbitration Court are currently being revised in order to adapt them to the modern trends in arbitration. The draft of the new rules of arbitration envisages, inter alia, the appointment of an emergency arbitrator and an expedited procedure for claims under 50,000 lei.

Back to top