First published on Wednesday, 23 March 2011 and last verified on Thursday, 19 July 2012

Commercial Arbitration

Romania

Cornel Popa

Ţuca Zbârcea & Asociaţii

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    Romania has ratified the New York Convention through Decree No. 186/1961. Romania has made two reservations: (i) application of the New York Convention only to disputes arising from contractual or non-contractual relationships which are considered commercial under Romanian law; and (ii) the condition of reciprocity applicable for recognition and enforcement of arbitral awards issued in a non-contracting state.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    Romania is a party to the European Convention on International Commercial Arbitration (1961), ratified through Decree No. 281/1963. The Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) is another treaty that Romania is a party to since its ratification by Decree No. 62/1975.

    Romania does not have bilateral treaties concluded specifically for the recognition and enforcement of arbitral awards. However, provisions concerning such matters are included in some of the bilateral treaties concerning legal assistance in civil and commercial matters. Such is the case for the bilateral treaties concluded by Romania with Algeria (1979), China (1992), Cuba (1981), Macedonia (2004), Morocco (1973), Republic of Moldova (1997), Syria (1979), and Tunisia (1972).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    The material regulation of arbitration is provided in Book IV of the Civil Procedure Code (hereinafter “CPC”). Although the CPC provisions relating to arbitration are in line with the UNCITRAL Model Law, they concern both national and international arbitration, whether institutionalised or ad-hoc, provided the proceedings take place in Romania.

    Note that the rules concerning recognition and enforcement of foreign arbitral awards are currently regulated under Law No. 105/1992 on private international law.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    The main arbitration body established under Romanian law is the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania (hereinafter the “Court of Arbitration”), which organises and manages the settlement of commercial and civil, domestic or international disputes, by means of institutionalised or ad-hoc arbitration. The president of the National Chamber of Chamber of Commerce and Industry of Romania may also act as an appointing authority. A relatively new alternative (existing from November 2010) is the Court of Arbitration attached to the German-Romanian Chamber of Commerce.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    Under Romanian law, the parties are in principle free to establish, either directly or by reference to a specific regulation, the rules governing the arbitration of their dispute, and they are allowed to refer the dispute to arbitration by a permanent tribunal or to another person. Consequently, foreign arbitral providers may operate in Romania.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    There is no specialist arbitration court. However, applications related to the arbitration proceedings may be brought before the court that would have had jurisdiction to hear the case at first instance but for the arbitration agreement. The requests to set aside the arbitration award are heard by the superior court to that which would have had jurisdiction at first instance, and are generally allotted to the commercial departments of such courts.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    The arbitration agreement must be executed in writing, either as an arbitration clause within a contract, or as a separate instrument.

    If the arbitration agreement is included in a contract, then it will cover all future disputes between the parties related to or arising from that contract, to which purpose it must indicate the names of the arbitrators or the method of their appointment.

    The arbitration agreement can be executed as a separate instrument if the dispute has already occurred, in which case the parties must indicate the object of the dispute and the names of the arbitrators or the method of their appointment.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    All disputes that parties are legally allowed to settle amicably can be subject to arbitration. There is no statutory listing of the non-arbitrable matters, but in light of application of the criterion mentioned above, it follows that non-arbitrable disputes include: the status and legal capacity of persons; disputes arising out of a family relationship, parentage, marriage or affinity; the majority of disputes governed by administrative law (in particular those arising from contracts to which a public authority is a party); disputes governed by the law of companies (eg, the incorporation legal capacity, internal organisation, winding up of companies, liability of directors and managers, certain disputes between the shareholders, etc), criminal matters (except for civil aspects deriving in connection thereto). Commercial disputes are, in principle, arbitrable.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    Under Romanian law, contracts (and thus also arbitration clauses) are binding in principle only for the parties thereto. Consequently, although the contract can provide rights for third parties, in principle, the obligation to settle disputes by arbitration cannot bind a third-party without its consent. Subject to certain conditions though, it may be however theoretically possible for third parties to be bound by an arbitration clause, in particular where such third party is an affiliate of one of the parties to the contract, and it has been actively and directly involved in the negotiation and the performance of the contract.

    Third parties can attend the hearings with the approval of the parties and the arbitral tribunal, but joinders and third-party notices are not specifically regulated.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    Consolidation of cases is theoretically possible under the general rules of CPC (which are however designed for the procedure to be followed by ordinary courts and not specifically for arbitration).

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    The group of companies doctrine is not clearly recognised under Romanian law. The only regulated method of piercing the corporate veil, i.e. the extension of liability of a limited shareholder that damages the creditors of the company, is not arbitrable.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    Both CPC and the procedural rules of the Court of Arbitration expressly regulate the separability of arbitration clauses from the main contract.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    Pursuant to Article 343^3(2) CPC, the arbitral tribunal must check ex officio its own competence to settle the dispute, and the decision concerning competence can be appealed only by following the procedure to set aside the arbitral award. Consequently, the appeal must be filed within a month from the service of the arbitral decision at the superior court to that which would have had jurisdiction in the absence of the arbitral agreement, and must be grounded on one or more of the limitative nullity reasons provided by CPC (Article 364).

    If a party to a court litigation shows there is an arbitration agreement with the other party, the court must check its competence. The court will keep the case only if:

    • The respondent has presented its defence, without any reserve grounded on the arbitral agreement;

    • The arbitration agreement is null or ineffective;

    • The arbitral tribunal cannot be constituted from reasons attributable to the respondent in the arbitral proceedings.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    Romanian law does not provide significant constraints for how an arbitration clause must be drafted in order to be valid. Essentially, the parties must refer to settlement by arbitration, and either indicate the names of the arbitrators or specify the method in which they are appointed. Of course, a higher precision in the arbitration clause is recommended, as the parties are allowed to regulate all aspects of the arbitration, but if the parties do not provide specific rules, the law and the rules applicable to the arbitral tribunal will apply.

    The parties can find a recommended arbitration clause on the website of the Court of Arbitration (http://arbitration.ccir.ro).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    Institutional arbitration is far more common than ad-hoc arbitration in Romania. When opting for ad-hoc arbitration the parties are allowed to use UNCITRAL Rules, but there is no record available concerning how often these have been used.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    The issue of multi-party arbitration agreements is regulated by the CPC only with regard to domestic arbitration. For international arbitration, the CPC provides that all parties will have the right to appoint an equal number of arbitrators, and the final number of arbitrators must be odd. Consequently, situations such as the one regulated for domestic arbitration that all parties having a similar interest will appoint one arbitrator must be specifically provided by the arbitration agreement. One mandatory rule that should be kept in mind is the absolute prohibition for a party to appoint an arbitrator on the behalf of other party to the arbitration.

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    Under Romanian law, arbitration proceedings are initiated through a request sent by the claimant to the arbitral tribunal. Documents are not served directly by one party to the other, unless this is specifically regulated by the parties to the arbitration agreement.

    The request for arbitration must be submitted within the limitation term applicable to the claimant’s cause of action. Generally, the statute of limitation under Romanian law is of three years from accrual of the cause of action (which applies unless the subject matter is regulated by a special legal norm providing for a shorter period of limitation), but it can be suspended or interrupted under exceptional circumstances provided by the law. As per the new provisions regulated by Law No. 287/2009 regarding the Civil Code (NewCivil Code), effective from 1 October 2011, the statute of limitation becomes under Romanian law a matter of private interest and no longer a matter of public one. Therefore, the parties may agree on certain issues concerning the statute of limitation, such as the limitation term, the moment such term starts to run, the situations that trigger the suspension or interruption of the statute of limitation. These conventional amendments of the legal regime of the statute of limitation must be provided expressly and are not valid if inserted in adhesion contracts, insurance contracts and consumer contracts. The new provisions of the New Civil Code are applicable to the limitation terms starting to run after the entry into force of the New Civil Code, with certain exceptions that are expressly provided by the law.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    As per the provisions of the New Civil Code, the substantive law shall be determined according to the EU Law: ie, Rome I Regulation on the law applicable to contractual obligations (in principle, the law determined by the parties), Rome II Regulation on the law applicable to non-contractual obligations. If the matter is not covered by Rome I Regulation (in case of contractual obligations), the law shall be determined according to the provisions of the NCC regarding legal deeds, unless international Conventions or special provisions state otherwise. Likewise, if the matter regarding non-contractual obligations is not covered by Rome II Regulation, the applicable law shall be the one governing the legal relationships already existing between the parties, unless international Conventions or special provisions state otherwise.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    Romanian law regulates a few restrictions concerning the ability to choose an arbitrator in international proceedings, but they apply only if the parties have not expressly regulated the arbitration rules. Only the foreign parties can appoint foreign arbitrators, and the final number of members of the tribunal must be odd. The Court of Arbitration keeps a list of authorised domestic and international arbitrators which is public on its website (http://arbitration.ccir.ro), and thus the parties to institutional arbitration organised by the Court of Arbitration must appoint only arbitrators from such list. It is possible that parties opt for other persons even in arbitration proceedings organised by the Court of Arbitration, but in such a case the arbitration is ad-hoc and the taxes increase by 25 per cent.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    Non-nationals are free to act as arbitrators in international arbitrations taking place in Romania. The conditions underlying their activity in Romania are the general immigration requirements applicable in Romania - i.e. non-EU citizens may be required to obtain visas and/or work permits.

    Mention must be made that, as pointed out in the previous answer, if the parties have not expressly regulated the issue, only the foreign parties can appoint non-national arbitrators. Moreover, in case of institutional arbitration organised by the Court of Arbitration, they must be selected from the list of authorised international arbitrators.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    Pursuant to the CPC, if a party fails to nominate the arbitrator within the applicable deadline, or if the applicable mechanism fails, the interested party can request the competent court to appoint the arbitrator. The court decides within 10 days, and such decision is not subject to any kind of appeal.

    If the arbitration is organised by the Court of Arbitration, then in case the parties or either party has failed to select an arbitrator, or has failed to select the arbitrator within the applicable term, the arbitrator shall be appointed by the appointing authority (i.e. the president of the National Chamber of Chamber of Commerce and Industry of Romania) with the exclusion of the court.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    Arbitrators are not afforded immunity from suit. On the contrary, CPC expressly provides that arbitrators are liable for damages, under the conditions prescribed by the law, in any the following situations:

    a) If they resign after accepting the appointment;

    b) If they fail to attend the hearings or present their decision within the deadline provided in the arbitration agreement or the law;

    c) If they fail to observe the confidential nature of the arbitral proceedings;

    d) If they blatantly breach their duties.

    The same provisions are reiterated in the rules of procedure of the Court of Arbitration, adding a new situation, namely when the arbitrator delays unjustifiably the proceedings.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    As per the CPC, the tribunal can require the parties to equally provide payment of the fees in advance, in which case the arbitral tribunal will not commence the proceedings before such advance payment is made.

    The rules applicable for institutional arbitration organised by the Court of Arbitration are significantly different. The rules of procedure of the Court of Arbitration provide that the claimant is bound to pay in advance all arbitration fees and expenses (therefore more than just the fees of arbitrators), in the amount determined by the secretarial office, within 10 days from the receipt of the notification deed issued by the Court of Arbitration. Subject to the circumstances of the case, the abovementioned time limit of 10 days may be reasonably extended by the president or the vice-president of the Arbitration Court.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    Arbitrators may be challenged by a party for either of the grounds expressly provided by the law for removal of the judges, essentially leading to lack of impartiality or lack of independence. Moreover, a party can challenge an arbitrator for non-fulfilment of the conditions provided in the arbitration agreement.

    The challenge must be filed within 10 days from the date when such party became aware of the arbitrator’s appointment or, as the case may be, from the occurrence of the ground for challenge. A party can challenge its own appointed arbitrator only for reasons occurring after such appointment.

    The challenging claim is settled by the court within 10 days, and the decision thereof is not subject to any kind of appeal.

    In case of institutional arbitration organised by the Court of Arbitration, the challenging claim is not settled by the court, but by the arbitral tribunal, in the absence of the challenged arbitrator, who will be replaced by the president of the Court of Arbitration, the prime vice-president or by an arbitrator appointed by them.

    Given the reference to the situations when judges can be removed, which are expressly and restrictively provided by the CPC, the IBA Guidelines on Conflicts of Interest in International Arbitration, although may provide useful guidance in certain specific situations, are not generally taken into account, unless included by reference in the arbitration agreement.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    Interim measures can be taken either by the court or the arbitral tribunal. Such interim measures can concern all matters available at law, under the general conditions that the circumstances require swift measures in order to preserve a right that would otherwise be lost, to prevent imminent damage which could not otherwise be recovered, or to remove any obstacles that may arise during enforcement of an order.

    In case the measures order by the arbitral tribunal are not wilfully observed, the enforcement of such measures can be ordered by the court.

    Anti-suit injunctions are not specifically regulated under Romanian law.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    Romanian law does not regulate the possibility of the arbitral tribunal to order a party to provide security for the costs of arbitration. The possibility of a court to order a party to the arbitral proceedings to provide security for the arbitration costs is rather remote, given the fact that Romanian law regulates special security procedures only in connection with the amounts/assets subject to the dispute, and not for the costs entailed by the litigation.

    As mentioned also in the answer to question 23, the registration fee and the arbitrators’ fees are generally paid in advance (especially where the rules of procedure of the Court of Arbitration apply).

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    There are a few imperative legal provisions in relation to the arbitration proceedings. The entire procedure must ensure the equal treatment of the parties, the observance of the right to defence, and the observance of each party’s right to argue all issues presented to the arbitral tribunal. Consequently, the parties are guaranteed access to the case file and they must be informed on the date and venue of each hearing. The parties are not allowed to waive the right to challenge the arbitral award before such award is given. Any agreement between the parties pursuant to which one can appoint arbitrator(s) for the other is null and void.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    The failure of the respondent to participate in the arbitration proceedings will not preclude the arbitral tribunal from adjudicating the case. As long as the respondent has been summoned, its failure to present or maintain its defence will not have any effects, as the arbitral tribunal will decide the case based on the evidence presented by the claimant. Any of the parties can request one adjournment of the case, for justified reasons, at least one day before the hearing initially established.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    Evidence allowed in arbitration proceedings taking place in Romania is of the same type as the evidence regulated by the law for common litigation in the courts of law: written deeds, witnesses, expert reports, local research, and the cross-examination of the other party, under the conditions that such evidence is useful, pertinent, and conclusive for the case. The arbitral tribunal may not use coercive methods to obtain evidence, and cannot sanction witnesses or experts.

    The parties are allowed to agree special rules concerning the administration of evidence. In such a case, the IBA Rules on the Taking of Evidence in International Commercial Arbitration may be applicable.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    Generally, all evidence is ordered and taken by the arbitral tribunal. The preservation of evidence can be ordered by either the arbitral tribunal or the courts, but the courts are exclusively competent to order sanctions for witnesses or experts that fail to observe their obligations, as well as to rule on the enforcement of the preservation of evidence ordered by the arbitral tribunal.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    Document production is in theory possible under Article 172 of the CPC. As a rule though, each party is required to present the documents on which it grounds its claims/defences. If a party shows that the other party holds a document related to the dispute, the arbitral tribunal can order the production of such document. However, if the other party refuses it, the interested party must seek enforcement in court.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    In principle, parties to an arbitration procedure have the right to argue and present their case orally, including on the merits of the case. However, a case may be decided on procedural grounds, which render futile the discussion of the merits of the case. In such cases, a hearing on the merits of the case would not be necessary.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    The place of arbitration is that which is indicated by the parties or, in the absence of such indication, established by the arbitral tribunal. There are no legal restrictions in this regard.

    If the parties opt for arbitration by the Court of Arbitration, the place of the proceedings shall be the official seat of the institution. If both parties request, for justified reasons, the proceedings can take place somewhere else, in which case the parties will equally share the additional costs.

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    Both under the CPC and the rules of procedure of the Court of Arbitration, decisions are passed by the arbitral tribunal after secret deliberations, by majority of votes.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    The arbitral tribunal can grant any remedies available under the applicable substantive law. However, remedies that would lead to the breach of Romanian public policy may not be granted, as such a situation would constitute a ground for setting aside of the arbitral award.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    Dissenting opinions are allowed under Romanian law. Each dissenting arbitrator must draft and sign its dissenting opinion, including the grounds thereof. The large majority of arbitral decisions are however unanimous.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    The arbitral award must observe the requirements established by the parties. If the parties have not provided derogatory provisions, CPC provides that each arbitral award must be presented in writing and must include: the members of the tribunal, place and date of the award; the names of the parties and their identification data; the indication of the arbitration agreement; the object of the dispute and the summary of arguments presented by each party; the factual and legal grounds of the award; the decision; the signatures of all arbitrators (except for the dissenting ones which draft and sign separate opinions).

    If the arbitration is organised by the Court of Arbitration, the award will also include the name of the arbitral assistant and his/her signature.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    Romanian law regulates the maximum time frame for arbitration proceedings. More specifically, the arbitral award must be granted within 5 months as of when the arbitral tribunal is established. The arbitral tribunal can extend such term with 2 months, if the circumstances so require.

    If the arbitration is institutional, and thus subject to the rules of procedure of the Court of Arbitration, the term applicable for international arbitrations is of 12 months from the establishment of the arbitral tribunal.

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    Costs (including attorney fees) are incurred by the parties in accordance with the arbitration agreement. In the absence of an agreement concerning costs, the “loser pays” rule will apply. CPC provides that the prevailing party will have the right to recover the costs incurred by it from the unsuccessful party, proportionally with the admitted claims.

    Pursuant to the rules of procedure of the Court of Arbitration, the arbitral tribunal can decrease the recoverable fees of attorneys, experts or interprets, if such fees are deemed disproportionately high for the value of the dispute or the work performed.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    Interest can be included to the principal claim if the applicable substantive law allows it. If Romanian law applies, interest can be claimed either in the same proceedings or separately.

    Pursuant to Government’s Ordinance No. 13/2011 (which implements the principles laid down in Directive 2011/7/EU on combating late payments in commercial transactions), the parties are free to establish the interest accruing for late performance of monetary obligations. Such interest shall be applicable from the due date until the effective payment of the debt. If the parties do not provide an interest rate, the statutory interest rate in matters related to the operation of an enterprise* amounts to the reference rate established by the National Bank plus four percentage points, while in civil matters, such interest rate (the reference rate plus four percentage points) must be reduced by 20 per cent.

    The applicable reference rate is established by the Board of Directors of the National Bank of Romania and is published in the Official Gazette of Romania, every time the interest rate afferent to the monetary policy is modified.

    * Pursuant to the provisions of the New Civil Code, the terms commercial and trader (in Romanian, comerciant) represent part of “professionals”, a new regulated term, meaning the person that operates an “enterprise” (the systematic exercise by one or more persons of an organized activity consisting of production, management, or disposal of goods, or provision of services, whether or not for profit). The newly regulated terms are meant to cover a wider range of private law subjects, including traders, liberal professions.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    Arbitral awards are final and binding under Romanian law, therefore they cannot be appealed unless the parties have expressly provided such possibility. However, they can be challenged in court, subject to the specific conditions listed below, at A42.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    Under Romanian law an arbitral award can be set aside only in the following situations:

    a) the dispute was not subject to settlement by arbitration;

    b) the arbitral tribunal settled the case without an arbitral agreement or pursuant to a void or ineffective arbitral agreement;

    c) the arbitral tribunal had not been established in accordance with the arbitral agreement;

    d) a party had not been present at the hearings and the notice procedure had not been observed;

    e) the arbitral award was given after the applicable deadline (see A38 above);

    f) the arbitral tribunal decided on matters that have not been claimed, failed to decide on matters that have been claimed, or granted more than what was claimed;

    g) the arbitral award does not include the decision and its grounds, the date and place of the decision, or the signatures of the arbitrators;

    h) the arbitral award includes decisions that cannot be enforced;

    i) the arbitral award breaches public policy or imperative provisions of the law; or

    j) if, after rendering the arbitral award, the Romanian Constitutional Court issues a decision declaring a certain legal provision, which was subject to constitutional challenge within the arbitral proceeding, as not constitutional. If the decision of the Constitutional Court refers to another legal provision, part of the legal enactment subject to the constitutional objection raised during arbitral proceedings that is closely related to the provision challenged, the arbitral award could also be set aside.

    The request to set aside the arbitral award must be submitted within one month from the date the arbitral award is served to the concerned party.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    The parties are not allowed to waive the right to initiate an action to set aside the arbitral award prior to such award being given.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    Romanian courts enjoy discretion when deciding on the recognition and enforcement of foreign arbitral awards. The conditions of such recognition and enforcement are those laid down by the New York Convention, the European Convention, and Law No. 105/1992. Given the fact that Romanian law does not provide as one of the grounds for refusal of recognition and enforcement the fact that the award has been set aside abroad, it follows that in theory it would be possible for Romanian courts to recognise and enforce an arbitral award set aside abroad, especially in situations where Article IX of the European Convention would apply. However, there is no public record of such situation having occurred.

    Notwithstanding the above, we think it is highly likely that the request for the enforcement of such an arbitral award would be denied by the Romanian courts, on the ground that an enforceable award must be “final” (which an award that has been set aside would not be).

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    Not applicable.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    In what concerns enforcement in Romania of arbitral awards in which the Romanian state (represented by the Ministry of Public Finance) or a Romanian public entity has been a party, in principle a defence of state or sovereign immunity would not be available. However, there might be certain practical impediments to the enforcement of the award due to the application of Government Ordinance No. 22/2002. More specifically, any Romanian public entity or administrative authority can ask the court to order the suspension and/or the rescheduling of the obligation to pay the amounts due as per any writ of execution (which includes arbitral awards subject to specific formalities). Such a claim need only be based on the practical inability of the relevant public entity/administrative authority to pay the amount due, which is a likely scenario at least for public institutions funded entirely from the state budged. That is because such public institutions have annual pre-approved budgets, and any debt that has not been included therein requires additional funds and additional approvals.

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    Romanian law and the rules of procedure of the Court of Arbitration expressly provide that arbitration proceedings are confidential, thus third parties are not allowed access to information unless agreed by the parties. Furthermore, the arbitrators are liable for any breaches of confidentiality.

    The parties are free to agree other applicable rules concerning confidentiality.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    Pursuant to Romanian law all documents in the case file are confidential. Consequently, they cannot be relied on in other proceedings unless all parties of the initial arbitration agree.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    Lawyers involved in arbitration proceedings in Romania are bound by the ethical obligations provided by the statute of legal profession and by the Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers adopted by The Council of Bars and Law Societies of Europe.

    Arbitrators are not bound by specific ethical standards. However, the law and the rules of procedure of the Court of Arbitration provide several professional obligations (e.g. confidentiality, equal treatment of the parties, observance of the applicable deadlines, etc).

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    Not applicable.

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