Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
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Results: 4 Answers
International Arbitration
1.
Legal framework
1.1
What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
 
Romania
Emerging economies such as Romania, perhaps more than developed markets, require arbitration-friendly legislation and arbitration-sympathetic courts to provide investors with efficient ways to resolve commercial disputes and encourage engagement with new and relatively challenging markets.

Since 2013, the main body of law applicable to arbitration in Romania is set out in Book IV “On Arbitration” (domestic arbitration) and Book VII “On International Arbitration and the Effects of Foreign Arbitral Awards” (international arbitration) of the Civil Procedure Code. Although the international arbitration provisions are not considered to be based on the UNCITRAL Model Law on International Commercial Arbitration, they are generally in line with its principles.

The domestic arbitration provisions require that a valid arbitration agreement be in writing. This condition will be met if the parties agree to resort to arbitration through the exchange of correspondence, irrespective of form, or through the exchange of procedural submissions.

If the arbitration agreement concerns a dispute relating to the transfer of a property or to the creation of real rights in immovables, the arbitration agreement must be authenticated by a notary public. In practice, a contract constituting rights in immovable property is likely to be in authentic (notarial) form in any event and therefore the question might be of reduced practical importance.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
1.2
Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
 
Romania
The domestic arbitration provisions set out the legal default and mandatory rules applicable to Romania-seated arbitrations in general, while the international arbitration provisions set out additional and derogatory rules for proceedings involving foreign elements.

In proceedings which are considered international, procedural periods (eg, notice periods) are extended. Also, the default position in international proceedings regarding the arbitrators’ fees is that each party bears the costs of its appointed arbitrator, while the fees of the presiding arbitrators are shared equally, unless the arbitration agreement provides otherwise (bearing in mind, in this case, that institutional rules, where applicable, will fall within this category of parties’ agreement and will often regulate liability for costs).

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
1.3
Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
 
Romania
Although the arbitration provisions are not considered to be based on the UNCITRAL Model Law on International Commercial Arbitration, they are widely considered to be in line with its principles.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
1.4
Are all provisions of the legislation in your jurisdiction mandatory?
 
Romania
As a general rule, under Romanian law, the arbitration will be governed by the arbitration agreement, through which the parties can regulate the procedure. Therefore, the arbitration provisions are not mandatory.

However, parties cannot derogate from public order and imperative provisions (Article 541 of the Civil Procedure Code), or from general procedural principles such as due process, the right to be heard and the adversarial principle (Article 576 of the Civil Procedure Code).

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
1.5
Are there any current plans to amend the arbitration legislation in your jurisdiction?
 
Romania
There are no plans to amend the arbitration provisions in the Civil Procedure Code.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
1.6
Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
 
Romania
Romania has ratified the New York Convention and the enforcement procedure is in line with the New York Convention. Romania made two reservations: the commercial reservation and the reciprocity reservation.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
1.7
Is your jurisdiction a signatory to any other treaties relevant to arbitration?
 
Romania
Romania is a party to:

  • the International Centre for Settlement of Investment Disputes Convention (signed 6 September 1974; deposited 12 September 1975; entered into force 12 October 1975);
  • the Energy Charter (signed 17 December 1994; ratified 10 March 1996; deposited 12 August 1997; entered into force 16 April 1998); and
  • the European Convention on International Commercial Arbitration (signed 21 April 1961; ratified 16 August 1963).
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
2.
Arbitrability and restrictions on arbitration
2.1
How is it determined whether a dispute is arbitrable in your jurisdiction?
 
Romania
According to the domestic arbitration provisions, all persons with full legal capacity may agree to resolve disputes between themselves through arbitration, except for disputes concerning personal status, personal capacity, inheritance, family relationships or rights that parties cannot freely dispose of.

The international arbitration provisions stipulate that all disputes are arbitrable as long as:

  • the relief sought has a pecuniary character (ie, it is expressed in money);
  • the dispute concerns rights that parties can freely dispose of; and
  • the jurisdiction of such dispute is not exclusive to a state court according to the law governing the seat of arbitration.
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
2.2
Are there any restrictions on the choice of seat of arbitration for certain disputes?
 
Romania
There is no such express restriction on the parties’ choice of seat.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
3.
Arbitration agreement
3.1
What are the validity requirements for an arbitration agreement in your jurisdiction?
 
Romania
The arbitration agreement must be concluded in writing, under sanction of nullity. This includes correspondence, irrespective of form, and exchange of procedural submissions.

The arbitration agreement is deemed valid in Romania if it meets the formation conditions according to any of the following laws:

  • the law chosen by the parties (lex voluntatis);
  • the law governing the dispute (lex causae);
  • the law of the agreement that comprises the arbitration clause (lex contractus); or
  • Romanian law.

Moreover, if the arbitration agreement is itself governed by Romanian law, the Romanian Civil Code will apply to the general rules of contract formation, as follows:

  • The parties must have legal capacity to contract;
  • The consent of the parties must have been free from duress or undue influence; and
  • The subject matter and the causa of the agreement must be lawful.
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
3.2
Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?
 
Romania
The separability principle is regulated under the Civil Procedure Code, which specifies that the validity of the arbitration agreement may not be challenged on the grounds of invalidity of the contract in which it is contained.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
3.3
Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?
 
Romania
agreement between the parties?

The basic rule is that the proceedings take place in the language specified in the arbitration agreement. If the arbitration agreement is silent on this point and no subsequent agreement has been reached, the language of the arbitration will be that of the contract in relation to which the dispute arose or, if the parties do not agree, the language deemed proper by the tribunal, taking account of international custom.

Where the arbitration agreement refers to institutional rules, the institutional rules will apply to the matter.

Thus, the Rules of Arbitration of the Bucharest International Arbitration Court attached to the American Chamber of Commerce Romania state that if the agreement to arbitrate does not contain a provision regarding the language of the proceedings, the tribunal shall determine the language(s) of the proceedings by taking into consideration all circumstances, particularly the language of the agreement from which the dispute has arisen and the applicable law.

The Rules of Arbitration of the Court of International Commercial Arbitration of the Chamber of Commerce and Industry of Romania stipulate that unless the parties have agreed otherwise, the language of the arbitration is Romanian.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
4.
Objections to jurisdiction
4.1
When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
 
Romania
As to the timing of any jurisdictional objection, the parties must plead jurisdictional matters before any pleading on the merits. However, in international arbitration, tribunals may decide to rule on jurisdictional matters together with the final award on the merits.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
4.2
Can a tribunal rule on its own jurisdiction?
 
Romania
As regards both international arbitration and domestic arbitration, the principle of competence-competence applies and tribunals rule on their own jurisdiction. The tribunal’s discretion to rule on its own jurisdiction is retained even if identical disputes are pending before the courts or other arbitral tribunals, and the tribunal may decide to assume or decline jurisdiction or stay proceedings, if deemed necessary.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
4.3
Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
 
Romania
The arbitration agreement excludes the jurisdiction of the courts over disputes to which it refers. Therefore, unless the judicial authority vested with the question decides that the arbitration agreement itself is void, the courts will decline jurisdiction in favour of arbitration.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
5.
The parties
5.1
Are there any restrictions on who can be a party to an arbitration agreement?
 
Romania
Certain legal entities may be prohibited from resorting to arbitration. Under the domestic arbitration provisions, the state and public authorities may conclude arbitral agreements only if they are authorised to do so by law, while other legal entities of a public nature may conclude arbitration agreements if so provided by their statute or bylaws.

In international arbitration, a state or state-controlled entity may not invoke its own domestic law in order to rely on a lack of capacity challenge to jurisdiction.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
5.2
Are the parties under any duties in relation to the arbitration?
 
Romania
There are no special duties in relation to arbitration, other than the procedural rights discussed elsewhere in the context of the conduct of the arbitral proceedings.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
5.3
Are there any provisions of law which deal with multi-party disputes?
 
Romania
There are no legal provisions regulating multi-party disputes in arbitration. However, in the absence of special institutional rules on the matter, the basic rule is that a party may be subject to arbitral jurisdiction only based on an agreement to arbitrate. Therefore, it is unlikely that a party may be drawn into an arbitration unless such agreement is found to be binding on it.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
6.
Applicable law issues
6.1
How is the law of the arbitration agreement determined in your jurisdiction?
 
Romania
The law of the arbitration agreement can be different from the law applicable to the underlying contract (as a consequence of its independence) and, unless expressly stated, may be determined by the tribunal to be either (i) the law chosen by the parties, (ii) the law governing the subject matter of the dispute, (iii) the law governing the contract that includes the arbitral agreement, or (iv) Romanian law.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
6.2
Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
 
Romania
The tribunal is bound to apply the law chosen by the parties. In the absence of such a choice, the tribunal will apply the law that it considers most appropriate considering customary practices and professional rules.

Under the Arbitration Rules of the Romanian Chamber of Commerce, the tribunal will decide the dispute based on applicable written or non-written legal norms, taking into consideration all circumstances of the case and, among other things, the general principles of law and the requirements of fairness and good faith. If the dispute is international, the tribunal will decide the matter pursuant to the laws or other legal norms chosen by the parties; if the parties have not designated the governing law, it will decide the matter based on the laws or other legal norms which it believes to be most appropriate. Any choice by the parties of the laws of a certain state is deemed to refer to the substantive law of the relevant state, excluding its conflict-of-laws rules.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
7.
Consolidation and third parties
7.1
Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
 
Romania
The Civil Procedure Code does not contain express provisions on the consolidation of separate arbitrations.

The Arbitration Rules of the Court attached to the Romanian Chamber of Commerce state that either party may apply, either with the request for arbitration or the response thereto, for consolidation of the proceedings with arbitration that are already pending. The tribunal may accept the consolidation request if:

  • all parties agree to the consolidation;
  • all claims are made under the same arbitration agreement; or
  • if the claims are made under more than one arbitration agreement, the relief sought arises from the same transaction or series of transactions and the tribunal considers the arbitration agreements to be compatible.
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
7.2
Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
 
Romania
Unless the arbitration agreement provides otherwise, third parties are entitled to participate in arbitration proceedings only if they consent and with the consent of all other parties. The consent of all parties to the arbitration is not required if a third party joins the arbitration proceedings only to support the position of one of the existing parties (interventie accesorie).

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
7.3
Does an arbitration agreement bind assignees or other third parties?
 
Romania
No express provision regulates this issue, but it appears that the question of the scope and effectiveness of an assignment of contractual rights - in particular, whether it covers the rights under the arbitration agreement - is governed by ordinary contract law and is therefore a matter of interpretation of assignment of the contract.

An arbitration agreement will not bind a party which is not privy to it in the ordinary sense of contract law.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.
The tribunal
8.1
How is the tribunal appointed?
 
Romania
The tribunal is appointed in accordance with the institutional rules in the case of institutional arbitration and in accordance with the parties’ agreement in the case of ad hoc arbitration. If the parties fail to regulate the appointment of arbitrators, the provisions of the Civil Procedure Code will apply.

The same rules on the appointment of arbitrators apply to both domestic and international arbitration. In general, unless otherwise regulated by the arbitration clause or the rules of the relevant arbitration institution, the parties are free to appoint arbitrators of their choosing. If the parties disagree on the appointment of a sole arbitrator or of the presiding arbitrator in the case of a tribunal, or if a party fails to make an appointment, the parties can request the court to make the appointment. If so seized, the court must decide within 10 days; its decision is subject to appeal.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
Romania
No, unless such specifications are part of the parties’ agreement (including the institutional rules).

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
Romania
The parties can challenge an arbitrator in a manner similar to the way in which sitting judges are challenged in regular courts. A challenge must be raised within 10 days of the date on which the aggrieved party becomes aware of the appointment or, as the case may be, from the occurrence of the grounds for challenge. The challenge must be determined within 10 days and the decision is not subject to appeal. The parties and the challenged arbitrator must be heard before the court makes a determination. For a challenge to succeed, it is sufficient to cast doubt upon the arbitrator’s independence and impartiality. Arbitrators are bound by a positive obligation to disclose any grounds for challenge known to them, and must inform the parties and the other co-arbitrators before accepting an appointment (so that the parties can make an informed choice). They must also inform the parties if such circumstances arise after appointment, as soon as they are discovered.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.4
If a challenge is successful, how is the arbitrator replaced?
 
Romania
The arbitrator will be replaced following the same provisions that applied to his or her appointment.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
Romania
There are no provisions per se on the duties and obligations of the arbitrators, but such duties can be inferred from practice and are recognised in legal commentary as part of the general legal framework, as follows:

  • Expertise: An arbitrator must not accept an appointment if the case exceeds his or her expertise, or if he or she considers that he or she does not have sufficient time and resources to properly perform his or her functions.
  • Integrity: An arbitrator must not enter into any kind of business - financial, professional or family - with the parties to the dispute or other related persons during the arbitration proceedings.
  • Obligation to inform: Before accepting an appointment, an arbitrator must inform the other members of the tribunal and the parties of any personal interest in the participants in the proceedings; this obligation must be exercised throughout the proceedings.
  • Obligation to act professionally: During the arbitration proceedings, the arbitrator must act - and require the participants in the proceedings to act - diligently, fairly, promptly and with patience and courtesy towards all participants.
  • Obligation to render the award: The arbitrator is bound to decide the case by relying on his or her own convictions and without any external influences.
  • Obligation to observe the confidentiality of deliberations: The arbitrator is bound to respect the confidentiality of the arbitration.
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
Romania
(a) Procedure, including evidence?

The proceedings will take place in accordance with the arbitration agreement or the rules of the arbitration institution.

Evidence is ordered and taken by the tribunal, which has exclusive power to determine the materiality, relevance and weight of the evidence proposed by the parties.

However, the tribunal cannot compel or sanction witnesses, experts or public authorities for failing to appear or produce documents, and the intervention of a court is required to impose any sanctions. In this situation, the tribunal or the parties (with the assent of the tribunal) may request the assistance of the courts, acting in accordance with domestic law.

(b) Interim relief?

After the tribunal has been constituted, it may issue conservatory and provisional measures and acknowledge certain factual circumstances. If the parties refuse to comply, the domestic court may be seized to take enforcement measures.

(c) Parties which do not comply with its orders?

As a general rule, the tribunal can ask the national courts to enforce orders issued by the tribunal. Depending on the nature of the order, there are several different possible outcomes. For example, if the parties do not comply with an order to produce evidence within the specified timeframe, the tribunal can decide not to allow submission of the evidence; and if the parties do not deposit the arbitral fees, the tribunal may not commence the proceedings until the deposit has been made.

(d) Issuing partial final awards?

There are no express restrictions on the issuance of partial final awards. However, the legal framework contemplates the jurisdictional mandate of the tribunal to issue a final award resolving the dispute, rather than just a part thereof, and this is common practice. This practice is supported by the fact that there is no legal remit for judicial courts to issue final decisions on liability separate from quantum, which tends to weigh heavily on arbitration practice.

(e) The remedies it can grant in a final award?

The tribunal can grant in a final award only what was expressly requested by the parties; otherwise, there are no legal restrictions as to the remedies that a tribunal can grant.

(f) Interest?

The tribunal can award interest if requested and if the law applicable to the merits allows for this.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
Romania
The default position is that if a party refuses to participate in the arbitration, the tribunal will proceed unimpeded with the arbitration. Therefore, an award can be validly issued even without the active participation of a party (but without prejudice to other requirements, particularly regarding notice).

Generally, the absence of a party, that has been legally notified will not impede the arbitration proceedings,, unless the absent party lodges a request for a continuance at least three days before the hearing date, invoking serious grounds.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
8.8
Are arbitrators immune from liability?
 
Romania
Arbitrators can be held liable only if:

  • they resign after accepting the appointment;
  • they fail to attend the hearings or present their decision within the timeframe specified in the arbitration agreement or the law;
  • they fail to observe the confidential nature of the arbitration proceedings; or
  • they breach their duties through bad faith or gross negligence.

Also, under Romanian law, arbitrators can face criminal liability for fraud or corruption.

While it is widely accepted in practice that arbitrators are not liable for awards themselves (subject to the above), there is no express legal protection setting out arbitrator immunity.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
9.
The role of the court during an arbitration
9.1
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
 
Romania
Yes, but only if the parties so request by reference to the arbitration agreement. In this case, the court must decline jurisdiction. The court must retain jurisdiction and resolve the dispute if the respondent has presented its defences on the merits, making a reservation based on the arbitration agreement, if it finds that the arbitration agreement is void or inoperative, or if the tribunal cannot be constituted for reasons manifestly imputable to the defendant.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
9.2
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
 
Romania
Courts are permitted to intervene in international arbitration in order to remove obstacles to the organisation and running of the arbitral proceedings, as well as to fulfil other court functions in pending arbitral proceedings. In the absence of such court intervention, third parties such as experts, witnesses and persons in possession of assets or evidence that is relevant to the proceedings are under no enforceable obligation to comply with an order of the tribunal.

The intervention is triggered on the request of an interested party before the court with jurisdiction over the place of arbitration. At first instance, the request is heard by a single judge and the proceedings are carried out through an expedited procedure.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
9.3
Can the parties exclude the court's powers by agreement?
 
Romania
No; the provisions permitting a party to request the support of the courts in pursuit of the arbitration proceedings may not be excluded by agreement. However, a party may waive rights of action, for instance, by means of settlement or otherwise.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
10.
Costs
10.1
How will the tribunal approach the issue of costs?
 
Romania
Costs are allocated in accordance with the parties’ agreement. In the absence of such agreement, the losing party bears all costs if the request is accepted entirely, or bears them proportionally to such part of its claim that is granted. The same applies to partially successful counterclaims.

In ad hoc international arbitration, unless the parties have agreed otherwise in the arbitration agreement, the rules on costs are different. Each party bears the fees and expenses of its appointed arbitrator, in the case of a tribunal; if the dispute is referred to a single arbitrator and in the case of the presiding arbitrator of a tribunal, the costs are split equally between the parties.

The allocation of costs pursuant to the Bucharest International Arbitration Court Rules of Arbitration is slightly different. The tribunal may consider all elements which it considers appropriate, including the outcome of any of a party’s claims and the conduct of the parties during the proceedings.

The Rules of Arbitration of the Arbitration Court attached to the Chamber of Commerce provide that unless the parties have agreed otherwise, the tribunal, upon the request of a party, shall order in the award the payment by one party of any reasonable costs incurred by the other party, including costs relating to representation before the tribunal, taking into consideration the result of the arbitration, the manner in which each party contributed to ensuring the efficiency and expeditiousness of the proceedings and any other relevant circumstances.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
10.2
Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
 
Romania
There are no such express restrictions in law or practice. However, parties should be wary of references to arbitration which effectively remove a party’s access to justice, as such clauses may fall foul of human rights protections under the Romanian Constitution and Article 47 of the European Convention on Human Rights.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
11.
Funding
11.1
Is third-party funding permitted for arbitrations seated in your jurisdiction?
 
Romania
Third-party funding is not regulated in Romania; therefore, such funding arrangements may be possible, but the legal structure of such arrangements should be examined on a case-by-case basis to ensure compliance with the local law.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
12.
Award
12.1
What procedural and substantive requirements must be met by an award?
 
Romania
In both international and domestic arbitration, the award must state the reasons for any decision. Importantly, if an award does not contain reasons, it may be set aside.

Under the domestic arbitration provisions, the award must be in writing and must contain:

  • the names of the arbitrators;
  • the place and date of the award;
  • the names and addresses of the parties, the names of their counsel and the names of other persons who have attended the hearings;
  • an indication of the relevant arbitration agreement;
  • the object of the dispute and a summary of the parties’ arguments;
  • the factual and legal grounds for the award; if the arbitration was decided in equity, the award should also include the reasoning of the decision;
  • the dispositive part of the award; and
  • the signatures of all arbitrators and the signature of the assistant arbitrator.

In international arbitration, the minimum formal requirements are:

  • written form;
  • reasons;
  • date of the award; and
  • signatures of all arbitrators.
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
12.2
Must the award be produced within a certain timeframe?
 
Romania
The award must be issued after the arbitrators have concluded their deliberations. The issue of the award may be postponed by a maximum of 21 days. The award must be communicated to the parties no later than one month from the date on which it was issued.

The Arbitration Rules of the Bucharest International Arbitration Court state that the timeframe within which the tribunal must render its final award is six months, which begins to run from the date of confirmation of the terms of reference in accordance with these rules.

According to the Arbitration Rules of the Court of Arbitration attached to the Chamber of Commerce, the award shall be issued no later than six months from the date on which the tribunal is constituted.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
13.
Enforcement of awards
13.1
Are awards enforced in your jurisdiction? Under what procedure?
 
Romania
Domestic arbitral awards are treated as regular court decisions for the purposes of enforcement.

Foreign arbitral awards must first be granted recognition and enforcement by the Romania courts in order to be enforced.

Foreign arbitral awards can be recognised and enforced by the domestic courts of Romania under the Civil Procedure Code if the following two conditions are met:

  • The dispute is arbitrable in Romania; and
  • The award does not infringe public order as recognised by Romanian private international law.

Recognition and enforcement of a foreign award may be refused if one or more of the following is shown:

  • The parties lacked capacity to conclude the arbitration agreement in accordance with the provisions applicable to each party, as determined by the law of the state in which the award was rendered;
  • The arbitration agreement was void in accordance with the law governing such agreement as determined by the parties’ choice or, in the absence of such choice, in accordance with the law of the state in which the award was rendered;
  • The party against which the award is invoked was not duly notified of the appointment of the arbitrators or the commencement of the arbitral proceedings, or was prevented from mounting a defence thereto;
  • The constitution of the tribunal or the proceedings was not in accordance with the parties’ agreement or, in the absence of such agreement, with the law of the place of arbitration;
  • The award resolves a dispute that exceeds the scope of the arbitration agreement. Nevertheless, if certain elements of the award are in accordance with the arbitration agreement and such aspects can be separated from the remaining aspects, the award can be partially recognised; or
  • The award has not become binding on the parties, or was set aside or suspended by a competent authority of the state in which it was rendered or in accordance with the law of such state.

In ruling on the recognition and enforcement of foreign awards, the Romanian courts cannot assess the merits of the dispute.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
14.
Grounds for challenging an award
14.1
What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
 
Romania
The arbitration award can be challenged on the following grounds:

  • The dispute was not arbitrable;
  • The tribunal decided the dispute in the absence of an arbitration agreement or on the basis of a void or inoperative agreement;
  • The tribunal was not constituted according to the arbitration agreement;
  • The party challenging the award was absent from the hearing on the merits and the summoning procedure was not legally fulfilled;
  • The decision was rendered after the expiry of the agreed timeframe although termination had been invoked by one of the parties and there was no agreement between the parties for continuation of the arbitration;
  • The tribunal decided on matters not requested or awarded more than was requested;
  • The award does not include the reasons, does not state the date and place of the award, or has not been signed by the arbitrators;
  • The award is in violation of public policy, good morals or mandatory provisions of the law; or
  • After the award was rendered, the Constitutional Court has rendered a decision on an unconstitutionality objection raised in the arbitration, declaring unconstitutional the law which formed the subject of the objection. (In this situation, the timeframe for challenging the award is three months from publication of the Constitutional Court decision in the Romanian Official Journal). If an action for annulment is filed, on request only, the court can suspend enforcement of the award pending a decision on the annulment action. Suspension of enforcement may be conditioned on the posting of adequate security.
For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
14.2
Are there are any time limits and/or other requirements to bring a challenge?
 
Romania
The arbitration award can be challenged within one month before the Court of Appeal.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
14.3
Are parties permitted to exclude any rights of challenge or appeal?
 
Romania
Parties cannot waive their right to challenge the award in the arbitration agreement. Such right can be waived by a party only after the award has been rendered.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
15.
Confidentiality
15.1
Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?
 
Romania
No express provision is made for the confidentiality of arbitration proceedings. However, according to the Civil Procedure Code, arbitrators can be held liable if they disclose confidential information.

The Arbitration Rules of the Court of Commercial International Arbitration attached to the Chamber of Commerce provide that unless the parties have agreed otherwise, the procedure is confidential. The court, the president of the court, the board of the court, the secretariat of the court, the tribunal, the arbitral assistants and anyone involved in the organisation of the arbitration shall maintain the confidentiality of the entire arbitration.

On the other hand, the Arbitration Rules of the Bucharest International Arbitration Court state that arbitration under these rules shall be kept confidential by all participants, unless subject to a legal or contractual obligation requiring disclosure and unless otherwise agreed by the parties.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)
15.2
Are there any exceptions to confidentiality?
 
Romania
The Arbitration Rules of the Court of Commercial International Arbitration attached to Romanian Chamber of Commerce provide for some partial exceptions, for research purposes, as follows:

Awards and procedural orders may be published in full only subject to the approval of the parties. However, they may be published partially or in summary or analysed from the perspective of the legal issues raised, in magazines, scholarly works or arbitration case-law digests, without nominating the parties or providing other information potentially harmful to the interests of the parties. After the communication of the award and on a case-by-case basis, the President of the Court may authorize the consultation of the case files for purposes of scientifically research, subject to the observance of the confidentiality obligation.

For more information about this answer please contact: Adrian Iordache from SCA Iordache & Iordache (Iordache Partners)