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.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
International Arbitration
The tribunal
How is the tribunal appointed?

Answer ... 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)
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?

Answer ... 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)
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?

Answer ... 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)
If a challenge is successful, how is the arbitrator replaced?

Answer ... 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)
What duties are imposed on arbitrators? Are these all imposed by legislation?

Answer ... 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)
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?

Answer ... (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)
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?

Answer ... 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)
Are arbitrators immune from liability?

Answer ... 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)
International Arbitration