Romania - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Crina Baltag, Ph.D. (Queen Mary University of London), LL.M. (Stockholm University), M.Sc. (Academy of Economic Studies, Bucharest), LL.B. (University of Bucharest); Attorney-at-law; Secretary General, Amcham Brazil Arbitration and Mediation Center. Crina may be contacted at crina.baltag@amchambrasil.com.br or at crinabaltag@gmail.com.

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Originally from World Arbitration Reporter (WAR) - 2nd Edition

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I. INTRODUCTION: ARBITRATION IN ROMANIA—HISTORY AND PRACTICE

A. History and Current Legislation on Arbitration

The fall of the Communist regime, the transition towards a market economy and the integration of Romania in regional and international structures compelled Romania to the modernization of its legal system, in order to respond to these new challenges and to the demands of a fast economic growth. The popularity of arbitration in Romania, as an alternative method for the resolution of disputes, has grown in the last twenty years. However, there is a general belief that parties still prefer to submit their disputes to arbitration under the auspices of well-known foreign arbitration institutions, rather than to institutional or ad hoc arbitration in Romania. Reasons why parties are reluctant to arbitrate in Romania are related to the legal framework regulating arbitration, the perception of the Romanian legal system and, in particular, of its court system.

1. Historical evolution of the law on arbitration

The birth of the Romanian Arbitration Law is dated back in 1859, with the Romanian Civil Procedure Code (‘RCPC’) mainly inspired from the French law. The original provisions of the RCPC concerned only civil arbitration, while the arbitration procedure was rigid and complicated.

Only after the amendment of 1993, the RCPC recognized the institutional arbitration in Romania. However, Romanian arbitration institutions existed since 1929, when the first arbitral chambers had been organized for stock exchanges. During the Communism, arbitration and, in particular, institutional arbitration was considered incompatible with the Communist ideology, since it was promoting the idea of a private justice. Despite this interdiction, the Communist regime had to allow the organization of an Arbitration Commission attached to the Chamber of Commerce of Romania for the resolution of disputes arising out of the international trade relations, which were the state’s monopoly. Until the fall of the Communist regime, the Arbitration Commission attached to the Chamber of Commerce of Romania was the only place where arbitration was kept alive. The Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania (‘CICA’), the successor of the Arbitration Commission, is the main arbitration institution in Romania, administering domestic and international arbitration proceedings.

Table of Contents:

I. INTRODUCION: ARBITRATION IN ROMANIA – HISTORY AND INFRASTRUCTURE A. History and Current Legislation on Arbitration 1. Historical evolution of law relating to arbitration 2. Current law a) Domestic arbitration law b) International arbitration law 3. Law reform projects 4. Confidentiality and publication of awards a) Privacy of proceedings b) Publication of awards B. Arbitration Infrastructure and Practice in Romania 1. Major arbitration institutions 2. Number of cases and other statistics II. CURRENT LAW AND PRACTICE A. Arbitration Agreement 1. Types and validity of agreement a) Clauses and submission agreements b) Form of the arbitration agreement c) Content of the arbitration agreement d) Interpretation and law applicable to the arbitration agreement 2. Enforcing arbitration agreements B. Doctrine of Separability C. Jurisdiction 1. Which forum decides jurisdiction 2. Prima facie determination 3. Competence-competence D. Arbitrability 1. Subjective arbitrability 2. Objective arbitrability E. Arbitral Tribunal 1. Status and qualifications of arbitrators a) Number of arbitrators b) Qualifications of arbitrators 2. Appointment of arbitrators 3. Challenge and removal a) Grounds for challenge b) Procedure for challenge c) Replacement of arbitrators 4. Arbitrator liability and immunity F. Conducting the Arbitration 1. Law governing procedure a) Determination of law and rules governing procedure b) Seat of arbitration 2. Conduct of arbitration a) Basic procedural principles b) Submissions and notifications c) Deadlines and methods for their extension d) Legal representation e) Default proceedings 3. Taking of evidence 4. Interim measures of protection a) Jurisdiction for granting interim measures 5. Interaction between national courts and arbitration tribunals 6. Law and rules of law applicable to the merits 7. Costs G. Arbitration Award 1. Form requirements 2. Decision making 3. Settlement 4. Effects of award 5. Correction, supplementation and amendment a) Correcting the award b) Additional award c) Interpretation of award H. Challenge and Other Actions against the Award 1. Setting aside a) Grounds b) Time limits c) Procedure d) Limiting judicial review of awards by contract 2. Appeal on the merits III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards B. Foreign Awards a) Domestic rules b) New York Convention IV. ACCELERATED ARBITRATION PROCEDURE AND ELECTRONIC ARBITRATION V. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation 1. List of legislation and relevant international conventions 2. Romanian Civil Procedure Code, on Arbitration (See CD-ROM) B. Arbitration Institutions C. Cited cases D. Bibliography