THE ROMANIAN LAW APPLICABLE TO ARBITRATION

TITLE I. INTRODUCTION
A. General considerations upon arbitration
Regulation and typology. Arbitrability.

1. Law source
Domestic arbitration, the national procedure for arbitration
Book IV Articles 541 621 NCPC
Book VII International Arbitration

International Conventions:
The Geneva Protocol (1923),
The Geneva Convention dated 1927 upon the recognition of arbitral
awards,
The New York Convention dated June 1958 on the recognition and
enforcement of arbitral awards,
The Washington Convention dated March 1965 by which ICSID
(International Center for Settlement of Investment Disputes) was created,
The Geneva European Convention from 1961.

2. Definition / concept
Article 541 (1) NCPC:
Arbitration is an alternative jurisdiction having a private character.
Arbitration
- private justice by which the settlement of the disputes is submitted to
arbitrators
- a conventional way of settling disputes between parties
- a trust justice - it relies in the confidence placed in the arbitrators appointed by
the parties
- the disputes are settled through binding arbitral awards

Unlike other ADR, the arbitral award provides similar effects to

the judgements issued by the courts as it has the same
authority res judicata and is enforceable.
Unlike the courts decisions, the arbitral awards need to receive
the writ of execution the authority to be enforced granted by
the court of first instance see Article 6401NCPC.
Arbitration is neither mediation nor conciliation and can
not be confused with the conclusion of a transaction (Expedient
decision judgement attesting the consent of the parties).

3. The Nature of Arbitration and the Grounds of its

Development
Arbitration has a dual ground:
The arbitral award is a private jurisdictional act having its
origins in the parties agreement, in their conventional
consent.
The arbitrators render a genuine enforceable decision, but the
arbitrator is a temporary judge.
The arbitration agreement governs the litigation from the
constitution of the arbitral tribunal to the final award.

Advantages:
Liberty of choice of the parties
The provisions of Book IV are not imperative
Book IV has a subsidiary appliance
The Parties choose the rules of arbitration (see Article 544 NCPC)
The celerity (the arbitral award cannot be appealed, it can only be
challenged through an action for annulment).
Arbitration is flexible and therefore suitable for business
Confidentiality the discretion.
The qualification ad specialization of the arbitrators (e.g. stock exchange).
Inconvenient: the costs luxury extravagant justice.

4. Typology
Not mandatory arbitration as the consented, assumed character
represents the essence of arbitration (see Article 541 NCPC).
Criteria:
The choice of the parties to organize the arbitration themselves or to
submit it to a permanent institution
The parties will to get their trial settled applying the law or ex aequo et
bono
Whether the trial arises from a private law relation with a foreign element

a) Ad hoc arbitration - for any impediments related to the

constitution of the arbitral tribunal or the conduct of the
arbitral proceedings, the parties need to file a claim in front of
the tribunal in the jurisdiction where the arbitration takes
place.
Institutional arbitration (see Articles 616 621 NCPC)
)

Courts of arbitration:
ICC, LCIA, ICSID
Arbitration Chamber of the Bucharest Stock Exchange
The Court of Arbitration of UCECOM National Union Of
Handicraft And Production Cooperatives
Professions Arbitrations

b) Arbitration de jure in accordance with the law

)
Ex aequo et bono the arbitrator decides as amiable
compositeur
o It needs to be expressively agreed by parties.
o The arbitrators shall observe the public order
provisions and apply the fundamental principles of
civil trial.

c) Domestic arbitration
)

International arbitration Book VII

)Article 1111 (1) NCPC: An arbitration that takes place in Romania is

considered international if it arises from a private law relation with a foreign
element.
)- At least one of the parties did not have its domicile habitual residence or
headquarters in Romania at the time when the arbitration agreement was
concluded.

VCPC (1865 Code) the scope was defined: patrimony related

disputes regarding rights upon which the parties may conclude a
transaction.
International arbitration:
Article 1112 (1) NCPC: Any dispute pertaining to property
rights is arbitrable provided it concerns rights of which the
parties may freely dispose and the law of the place of arbitration
does not reserve such matters for the exclusive jurisdiction of
the courts.

The sanction: the arbitration agreement is null and void if the

parties decide to establish or challenge through arbitration
rights upon which they cannot freely dispose
Article 608 NCPC - the arbitral award is set aside through an
action for annulment whether the dispute was not capable of
resolution by arbitration

ARBITRABILITY:
SUBJECTIVE and Objective Arbitrability
Article 542 (2) NCPC: The state and public authorities have
the right to enter into arbitration agreements only if authorized
by law or by international conventions to which Romania is a
party.
Article 1112 (2) NCPC: If one of the parties to the arbitration
agreement is a State, a Stated owned enterprise or an
organization controlled by the State, this party cannot invoke its
right to contest the arbitrability of a dispute or its capacity to be
a party in the arbitral proceedings.

Article 1112 (3) NCPC: Legal entities of a public nature

whose scope of activity includes entering into economic
transactions may conclude arbitration agreements, unless their
statute or by-laws provides otherwise.
The scope of arbitration in respect of the entities which are
entitled to settle their disputes as such was extended and the
attitude of the State who seizes upon a domestic rule which
forbids arbitration in order to avoid the settlement is contrary to
international public policy.

Objective Arbitrability
1. Patrimony related disputes
2. Disputes which cannot be settled through
arbitration
3. Sensitive Subject-Matters: joint (dual)
disputes

Patrimony related disputes

Patrimony related disputes even if the claim is not
pecuniary
e.g.: the nullity of an agreement, independently to the claim of
the restitution.
We also need to check whether the courts do not have an
exclusive jurisdiction for that matter.
Disputes which can be submitted to arbitration: the right to
property and claim rights (the most frequent), positive and
negative obligations

Disputes which cannot be settled through arbitration

Individual rights which do not refer to property rights

Patrimony related rights which cannot be negotiated and cannot
form the subject of a transaction agreement
Non-negotiable disputes per se: criminal law, liability for contraventions (minor offenses)
Nontransferable rights: indefeasible rights: as a rule, public ownership.
Nevertheless, a lease agreement can be submitted
Public procurements: Emergency Government Ordinance 34/2006 (1.07.2013) - the
performance, fulfilment of the agreements can be submitted to arbitration. Nevertheless, the
assignment of such agreements and the conduction of the public procurement procedure is
not arbitrable.

Administrative and fiscal contentious

Labor disputes.

Sensitive Subject-Matters
Joint / dual Disputes Sensitive Subject-Matters
Intellectual property
Corporate Law:
o Exclusive jurisdiction: the dissolution of companies, exclusion of shareholders
o Patrimony related relations between shareholders or between them and the company

Competition law claim damages for anti-competitive acts (an

exclusionary abuse for instance) Law 21/96 in tort liability even if the
Competition Council did not previously ascertain the existence of
an anti-competitive practice. Furthermore, damages for unfair
competition according to Law no. 11/1991.
E.g. the claimant requests the fulfilment of the agreement and the
defendant can raise a plea of voidance.

 Insolvency, restructuring and bankruptcy: - the agreements

concluded after the courts decision. The arbitral claim is also suspended
even though nullity claim against anterior contracts.
Consumer Law: the arbitration clause is considered unwritten in
contractual relations between professionals and consumers while
the submission agreements are allowed.
G.O. 38/2015 in force since September 2015: alternative settlement for
dispute between consumers and traders: alternative dispute settlement
entities established under the National Authority for Consumer Protection as
well. Not arbitration. The decision can be appealed within 15 days.

Lawyers
Arbitration is mandatory for disputes arising between lawyers
regarding the exercise of their profession. The claim is submitted to the
dean of the bar and the arbitrators must be lawyers for at least 10 years. In
addition to the specific provisions of the Statute, the procedure is governed
by Book IV. It is neither a compulsory arbitration, nor a consented one and
was criticized.

Title II. ARBITRATION

AGREEMENT
LEGAL NATURE
Act which expresses the consent of the Parties to settle the dispute through Arbitration
Act which confers the arbitral tribunal the power (Legitimacy) to settle the dispute

Dual nature: - contractual

- jurisdictional
Features:
Agreement
Conveyance (instrument disposing of rights of property)
Procedural Act

Types of Arbitration Agreements

1. Arbitration clause
2. Submission agreement
Art. 549 (1) NCPC: The arbitration agreement may be concluded:
- either as an arbitration clause, included in the main contract or
in a separate agreement that the main contract incorporates by
reference,
- or as a separate agreement called a submission agreement.

Art. 550 (1) NCPC: Arbitration clause

- indicating, under the sanction of nullity, the method of
appointing the arbitrators
- institutional arbitration - it is sufficient to refer to the
procedural rules of the institution
Art. 551 (1) NCPC: Submission agreement
- under the sanction of nullity, the subject matter of the
dispute as well as, in the case of ad hoc arbitration, the
names of the arbitrators or their method of appointment
- the appointment can be made in accordance with the rules of
the arbitral institution

Compulsory elements:
1. Arbitration clause
- Method of appointing the arbitrators (exception: institutional arbitration)

2. Submission agreement
- The subject matter of the dispute - absolute nullity
- The names of the arbitrators or the method of appointment (exception:
institutional arbitration) - curable nullity (void ability)

THE AUTONOMY OF THE

ARBITRATION CLAUSE
Art. 550 (2) NCPC: The validity of the arbitration clause is independent from
the validity of the main contract
How can the arbitrators pronounce the nullity of the contract?
The clause lives longer than the contract. The clause survives the cancelation
(rescission) of the contract.
The Kompetenz Kompetenz Principle
The competence of the arbitrator to examine his competence (art. 579 NCPC)
The courts jurisdiction is excluded (art. 554 NCPC)

The validity of the arbitration

agreement
Essential conditions
1.
2.
3.
4.

Capacity (standing and acting capacity)

Free consent
Subject-matter
Scope

Formal conditions
Art. 548 NCPC: Written form
(1) The arbitration agreement shall be concluded in writing, under the sanction of nullity.
- Exchange of correspondence or exchanges of procedural submissions
(2) If the arbitration agreement concerns a dispute connected with the transfer of a
property right and/or the creation of another right in rem related to immovable assets,
the arbitration agreement must be authenticated by a notary public under the sanction
of absolute nullity.
Rule written form
Exception Rights in rem: Certified document
Art. 549 (2) NCPC: The existence of an arbitration agreement may be inferred from the
written agreement of the parties made before the arbitral tribunal.

Pathological conventions
Alternative agreements:
The dispute shall be settled by the Court of Arbitration or by the court having
jurisdiction.
Blank agreements:
The disputes shall be settled through an arbitral award.
Arbitration clauses by reference:
A clause of the agreement refers to another contractual document (e.g.
general sales conditions) itself providing an arbitration clause.

Arbitration clause recommended by the Chamber of Commerce and Industry of

Romania (CCIR)
"Any dispute under or related to this agreement, including with respect to the execution,
performance or termination hereof, shall be settled by means of arbitration, by the Court of
International Commercial Arbitration attached to the Chamber of Commerce and Industry of
Romania, in compliance with the Rules of arbitration procedure of the Court of International
Commercial Arbitration, in force, published in the Official Monitor of Romania, Part. I.
ICC standard arbitration clause
All disputes arising out of or in connection with the present contract shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by one or more
arbitrators appointed in accordance with the said Rules.
Article 550 (3) NCPC: In case of doubt, the arbitration clause shall be interpreted to
apply to all disputes that derive from the contract or from the legal relation to which it
refers.

Sanction for the non-compliance:

Absolute nullity, in limine litis

Art. 592 (1) NCPC: Any objections related to the existence and validity of the
arbitration agreement () must be raised, under the sanction of waiver (not
tacit consent - SD), not later than the first date when the party was legally
summoned to appear.
Art. 608 NCPC: The arbitral award may be set aside if the arbitral tribunal
settled the dispute in the absence of an arbitration agreement or based on an
agreement that was null, BUT the irregularities that have not been raised in
due time cannot be relied on as grounds for annulling the award.

International Arbitration
Art. 1113 NCPC: Arbitration agreement
(1) The arbitration agreement, in order to be valid, must be concluded in writing, whether
in a document, telegram, telex, scan, electronic mail or any other means of communication
that can be proved through a text.
(2) As to its substance, the arbitration agreement shall be valid if it meets the requirements
prescribed by one of the following laws:
a)
b)
c)
d)

The law chosen by the parties;

The law governing the subject matter of the dispute;
The law governing the contract containing the arbitration clause; [or]
Romanian law.

(3) The validity of the arbitration agreement cannot be challenged on the grounds that the
main contract is invalid or because it relates to a dispute that has not yet arisen.

The Effects of the Arbitration

Agreements
Towards the Parties (signatories)
Binding force pacta sunt servanda
The settlement of the dispute through arbitration is mandatory
The parties shall perform in good faith the arbitration agreement (bona fide
fulfilment of the performances)
Procedural consequences
The exclusion of the courts jurisdiction
The arbitration clause empowers the arbitral tribunal to render an award

Effects towards third Parties

Relativity & Opposability
Privaty of arbitration clause res inter alios acta aliis neque
nocere neque prodesse potest
- The principle of relativity is attenuated in international
arbitration
Third parties shall not disregard the existence of the arbitration
agreement

The extension of the

arbitration agreement
Rule: The binding effect of the arbitration clause is limited to the
contracting parties; it does not concern third parties
? Paulian (revocatory action)
? Oblique action
Partial exceptions:
Groups of Companies
Groups of Contracts

Title III. PARTICIPANTS

Parties
Arbitral tribunal
Arbitral institution (Court of Arbitration)
Court of law

A. THE PARTIES
The parties to a dispute settled through arbitration
The signatories of the arbitration agreement
or
Other persons who consent the settlement of their dispute by the arbitral
tribunal through a binding and final award

Specific rights & obligations

Comply with the arbitration agreement in good faith
e.g.

- appointing arbitrators

- confidentiality

Procedural co-participation
Multiparty arbitration
Particular consequences:
Appointing arbitrators see art. 556 (3) NCPC
The possibility to have a common representative
? The effects of an arbitral award towards a joint owner when
the arbitral claim for restitution is filed by another co-owner
(art. 643 NCC)
? The impact of the admission of the action for the annulment
of the arbitral award in case of a mandatory co-participation

Representation
Article 546 NCPC: Representation of the parties
(1) In arbitral disputes, parties may make applications and exercise their procedural
rights directly or through a representative. These representatives can be assisted by
other specialists.
(2) In arbitral proceedings, a valid power of attorney provided to a lawyer shall,
unless it provides otherwise, signify the partys choice of a procedural address at the
lawyers office and shall also include the attorneys right to exercise the option
related to the lapse of the arbitration pursuant to Article 568, as well as to request or
accept the extension of the time limit for the arbitration provided for in Article 567.
(3) Paragraphs (1) and (2) shall likewise apply when a party is represented by inhouse counsel.

Whats different comparing to Romanian general proceedings rules?

Participation of third parties

Article 581 (1) NCPC:
Third parties may participate in the arbitral proceedings pursuant to Articles
61-77, but only with their consent and the consent of all parties.
Notwithstanding the above, the third party intervention in support of a party
to the dispute is admissible even without satisfying this requirement.
Article 33 CCIR Rules of Arbitration:
Third parties may participate in the arbitration proceedings under Article 6177 of the Code of Civil Procedure where such participation is possible under
an arbitration agreement or where the effects of the arbitration agreement
between the parties to the dispute may be extended to other participants.

B. THE ARBITRAL TRIBUNAL

THE CONSTITUTION OF THE ARBITRAL TRIBUNAL
Article 543 NCPC - Arbitral tribunal:
Under the arbitration agreement, the arbitration may be
determined by one or more persons, designated by the parties
or in accordance with the arbitration agreement to decide the
dispute and render a final and binding decision. The sole
arbitrator or the designated arbitrators, respectively, shall
constitute the arbitral tribunal for the purposes of this Book.

Number of arbitrators
Article 556 NCPC:
(1) The parties shall determine whether the dispute will be decided by a sole
arbitrator or by a tribunal with an odd number of arbitrators.
(2) If the parties have not agreed on the number of arbitrators, the dispute shall be
decided by three arbitrators, one appointed by each party and the third, presiding
arbitrator shall be designated by the two arbitrators.

Article 11 (3) CCIR Rules of arbitration:

Where parties have not determined the number of arbitrators, the dispute
shall be settled by three arbitrators, one appointed by each party and the
third arbitrator the presiding arbitrator appointed by the two arbitrators
or, in case of disagreement, by the president of the Court of Arbitration.
See art. 618 NCPC

Rule:
Collegial structure of the arbitral tribunal (exception:
sole arbitrator)
Odd number of members
Sanction: partial nullity
Solution
International Arbitration

ARBITRATORS
Requirements
Article 555 NCPC: Any natural person with full (legal) capacity may serve as
arbitrator.
Article 4 Rules on the Organization and Operation of the Court of International
Commercial Arbitration attached to CCIR: An arbitrator may be any individual,
Romanian or foreign citizen, with full exercise capacity of his/her rights, who benefits
of an outstanding reputation and enjoys a high level of qualification and professional
expertise in the field of private law, domestic and international economic relations
and commercial arbitration.
Specific requirements: - a law degree
- proof of actual experience in law and juridical activities of at least 8
years
ANY REQUIREMENTS OF THE PARTIES

Article 618 (1) NCPC:

The arbitral institution may maintain optional lists of persons
who can serve as arbitrators or presiding arbitrators. Such lists
do not have a mandatory character.
Article 15 CCIR Rules of Arbitration:
In case of an Arbitral Tribunal made up of three arbitrators, the
two arbitrators appointed in accordance to the provisions under
Article 14 shall nominate a presiding arbitrator from among the
arbitrators mentioned in the List of arbitrators within 5 days
from the receipt of the notification by the Court of Arbitration.

APPOINTMENT OF
ARBITRATORS
Rules:
Article 556 NCPC:
If there are multiple claimants or multiple respondents, the parties having
common interests shall appoint one arbitrator.

Article 557 NCPC:

Any clause in an arbitration agreement shall be null and void to the extent
that it confers a privilege on one of the parties designating the arbitrators, or
provides one party with the right to appoint an arbitrator on behalf of the
other party or to have more arbitrators than the other party.

Article 558. Appointment of arbitrators

(1) The arbitrators are appointed, revoked or replaced in accordance with the arbitration
agreement.
(2) When the sole arbitrator of the arbitrators, as the case may be, were not named in the
arbitration agreement and the arbitration agreement does not provide a method of appointment,
the party resorting to arbitration shall request the other party, in writing, to make appointments
pursuant to Articles 556(2) and (3)
(3) The request shall indicate the name, domicile, and as far as possible, the personal and
professional information of the proposed sole arbitrator or the arbitrator designated by the party
resorting to arbitration, as well as a brief description of the claims and their legal basis.
(4)The party receiving the request must, within 10 days from its receipt, communicate its answer
to the proposal to appoint the sole arbitrator or, as the case may be, provide the name, domicile
and, as far as possible, the personal and professional information of its designed arbitrator.
(5) When proposing their arbitrators, either through the arbitration agreement or as provided in
paragraphs (2)-(4) above, the parties shall also propose a substitute arbitrator in the case the
main arbitrator would be or would become unable to fulfill his or her appointment.

Article 559. Acceptance of the arbitrators appointment

The acceptance of the appointments must be made in writing and shall be
communicated to the parties within 5 days from the receipt of the
appointment proposal via post, telefax, electronic mail or any other means
ensuring the transmission of the acceptance and the confirmation of its
receipt.

Article 560. Appointment of the presiding arbitrator

The two arbitrators shall appoint the presiding arbitrator and the substitute
arbitrator within 10 days of the last acceptance of their respective
appointments. The presiding arbitrator shall comply with the provisions of
Article 559.

Procedural STEPS:
Appointment of arbitrators according to:
the arbitration agreement
secondarily, Book no. IV NCPC

Acceptance of the arbitrators appointment

Constitution of the arbitral tribunal
Article 566 NCPC: Constitution of the arbitral tribunal
(1) The arbitral tribunal is considered constituted on the date of acceptance by the sole arbitrator
or, as the case may be, of the last acceptance by an arbitrator or the presiding arbitrator.
(2) The date of acceptance is the date when the notice of acceptance provided for in Article 559 is
submitted.

Obstacles in appointing
arbitrators:
Ad hoc arbitration court of first instance
Article 561 NCPC: Appointment of arbitrators by the court
(1) The party resorting to arbitration may petition the court specified in Article 547(1) to proceed
with the appointment of the arbitrator or, as the case may be, the presiding arbitrator, if the
parties disagree on the appointment of the sole arbitrator, or if a party fails to make its
appointment, or if the two arbitrators do not agree on the presiding arbitrator.
(2) Within 10 days of receiving the position, the court shall, after summoning the parties, render a
decision that shall not be subject to appeal.

Institutional arbitration court of arbitration

Article 618 (1) NCPC: In case the parties cannot agree on the sole arbitrator or when a
party does not appoint its arbitrator or the two co-arbitrators cannot agree on the
presiding arbitrator, the president of the arbitral institution shall be the appointing
authority, unless the procedural rules of the institution or the parties provide otherwise.

INCIDENTS AFFECTING THE CONSTITUTION

OF THE ARBITRAL TRIBUNAL
Incompatibility (types of conflicts that disqualify judges; see Article 562
NCPC)
Challenge
Revocation
Abstention - see Article 562 (4) NCPC
Resignation
Decease
Arbitrators independent & impartial
See IBA Guidelines on Conflicts of Interest in International Arbitration

Status
Article 565. Liability of arbitrators
Arbitrators are liable, as prescribed by law, for the damage caused if they:
a) Resign, without cause, after accepting the appointment;
b) Fail, without cause, to participate in the resolution of the dispute or do not render
the award within the term required by the arbitration agreement of the law;
c) Do not observe the confidential character of the arbitration, by either publishing
or disclosing information acquired in their capacity as arbitrators without the
parties approval; or
d) Breach other duties in bad faith or gross negligence.

Team activities
Prerogatives of the courts of law in ad hoc and institutional arbitration
Prerogatives of the arbitral institutions
The conditions required for arbitral institutions

Kompetenz Kompetenz
Article 553 NCPC
The conclusion of the arbitration agreement excludes the
jurisdiction of the courts over the resolution of the disputes to which
it refers.
Article 579 (1) NCPC
On the first hearing date with the legal procedure completed, the
tribunal shall examine its own jurisdiction to resolve the dispute.

International arbitration
Article 1119 NCPC. Jurisdiction of the tribunal
(1)

The arbitral tribunal shall determine its own jurisdiction.

(2)The arbitral tribunal shall determine its own jurisdiction without

taking into account any proceeding involving the same parties and the
same subject matter which is already pending before a court or an
arbitral tribunal, except when serious grounds compel suspension of
the proceedings.
(3)Any jurisdictional objection shall be raised before any defense on
the merits.

Jurisdiction of the court

1. The parties do not ascertain the arbitration agreement
2. The parties ascertain the arbitration agreement
- Decline jurisdiction institutional arbitration
- Reject the claim as not falling within its jurisdiction ad hoc
arbitration
- Retain jurisdiction

Article 554(2) NCPC

The court shall retain [jurisdiction] and resolve the dispute if:
a) The defendant has presented its defenses on the merits, without making
any reservation based on the arbitration agreement;
b) The arbitration agreement is void or inoperative
c) The arbitral tribunal cannot be constituted for reasons manifestly
imputable to the defendant.

International arbitration
Article 1069 NCPC. Arbitration exception
If the parties concluded an arbitration agreement related to a dispute which
is arbitrable under Romanian law, the Romanian court seized [with the
dispute] shall decline its jurisdiction except for cases where:
a) The defendant did not invoke the arbitration exception by the date when
it was legally notified to appear;
b) The competent court finds that the arbitration agreement is void or
inoperative;
c) The arbitral tribunal cannot be constituted or the sole arbitrator cannot be
appointed for reasons manifestly imputable to the defendant.

Exception related to arbitration:

-

Private order

In limine litis

Only the defendant

- Prima facie examination by the court the arbitration

agreement is manifestly / palpably void or inoperative
Examples of inoperative arbitration agreements
Conflict of competence

PROCEEDINGS
SEIZING THE ARBITRAL
TRIBUNAL
REQUEST FOR ARBITRATION
Article 571 (1) NCPC:
The arbitral tribunal is seized by the claimant through a written request, which shall include:
a) Coordinates of the parties;
b) The name and capacity of the person representing the party, if applicable, together with the power
of attorney;
c) A reference to the arbitration agreement, together with a copy of the contract that contains it, or a
copy of the arbitration agreement if it was concluded separately or in the form of a submission
agreement;
d) The subject matter and the amount of the claim, as well as the method by which the amount was
determined;
e) The factual and legal grounds as well as the supporting evidence;
f) The name and domicile of the members of the arbitral tribunal; and
g) The signature of the party.

Article 573 (1) NCPC. STATEMENT OF DEFENSE

Within 30 days from the receipt of the copy of the
request for arbitration, the respondent shall submit its
statement of defense with the objections to the
claimants request for arbitration, the factual and legal
responses to the request, the evidence submitted in
defense, as well as the other corresponding elements
specified in Article 571 for the request for arbitration.

Is the statement of defense compulsory in arbitration?

Article 573 (3) NCPC:
If the tribunal considers that the non-submission of the statement
of defense justifies a delay in the proceedings, the respondent may
be compelled to pay the arbitral expenses caused by the delay.

Article 574 NCPC. THE COUNTERCLAIM

If the respondent has claims against the claimant arising out of the
same legal relation, it may submit a counterclaim.

SERVING PROCEDURAL ACTS

Article 572 NCPC. Submission of the request for arbitration
The claimant shall submit to the respondent and each of the
arbitrators a copy of the request for arbitration as well as
documents annexed thereto.
Idem - status of defense

NB: number of copies!

Article 577 NCPC. Communication of procedural documents

(1) The communication of documents related to the dispute, notices,
arbitral awards and interlocutory orders (court hearing minutes)
between or to the parties shall be made by registered mail with
declared contents and confirmation of receipt. Notification of the parties
or of other measures ordered by the arbitral tribunal may be made via
telefax, electronic mail or other means that ensure the transmission of
the text of the document and confirmation of receipt is obtained.
(2)Documents may also be handed directly to the parties, provided that
a signed confirmation of receipt is obtained.
(3)Proof of communication shall be submitted to the file.

CONDUCT OF THE
PROCEEDINGS
FUNDAMENTAL PRINCIPLES:
Procedural equality
Defense (including disclosure)
The right to dispose
Contradictoriality Right to be heard
Oral proceedings (right of audience)
CONFIDENTIALITY

RULES OF ARBITRATION
Article 576 NCPC. Applicable rules of procedure
(1)
In their arbitration agreement, the parties may determine the procedural rules
applicable to the arbitration or may authorize the arbitral tribunal to determine these
rules. These rules shall be complemented, where relevant, with the provisions of the
present Book.
(2) When the parties choose institutional arbitration, the provisions of Article 619(3)
shall apply.
(3) In all other cases, the arbitral procedure shall be determined by the present Book.
AD HOC ARBITRATION
1. Arbitration agreement
2. Arbitral Tribunal
3. Book no. IV

INSTITUTIONAL ARBITRATION
Article 617 (2) NCPC:
In case of disagreement between the arbitration agreement
and the rules of the arbitral institution referenced in that
agreement, the arbitration agreement prevails.
Article 619 NCPC:
Rules of arbitration

Time limit
Article 567. Time limit for the arbitration
(1)
If the parties have not provided otherwise, the arbitral tribunal must render the
award not later than 6 months from its constitution, under the sanction of lapse of the
arbitration
(2) The time limit shall be suspended pending a challenge or any other ancillary request
to the court specified in Article 547.
(3) Within the time limit specified in paragraph (1), the parties may agree in writing to
extend the time limit for the arbitration.
(4) The arbitral tribunal can decide, for a justifiable reason, to extend the time limit for the
arbitration once, for no more than 3 months.
(5) The time limit for the arbitration shall be automatically extended by 3 months upon
the death of one of the parties.
International arbitration: double

Article 568 NCPC. Lapse of the arbitration

(1) On the first date when the parties are legally notified to appear
(primul termen de judecata), they must declare in writing, under the
sanction of waiver (decadere), whether they intend to assert that the
[time limit for the] arbitration has expired (caducitate).
(2)When the least one of the parties has made the declaration
specified in paragraph (1), the arbitral tribunal shall make, upon the
expiry of the time limit specified in Article 567, a decision declaring
that the [time limit for the] arbitration has expired, unless the parties
have expressly declared in writing that they waive the right to invoke
the lapse, in which case the arbitral proceedings shall continue.

INTERIM MEASURES
Article 585 NCPC. Conservatory and provisional measures
(1)
Before or during the arbitration, any party may address the court specified
in Article 547 to issue conservatory and provisional measures related to the
subject matter of the dispute or to acknowledge certain factual circumstances.
(2) This request shall be accompanied by copies of the request for arbitration, or in
the absence thereof, by the proof of communication specified in Article 558(2), as
well as the arbitration agreement.
(3) The party requesting such measures shall inform the tribunal of their approval.
(4) During the proceedings, the arbitral tribunal may also issue conservatory and
provisional measures, and it may acknowledge certain factual circumstances. If the
parties refuse to comply, the court shall order enforcement of these measures,
pursuant to paragraph (1).

Subject:
Conservatory and provisional measures + acknowledge
factual circumstances
Documents required:
Arbitral claim/communication related to the constitution
of the arbitral tribunal + arbitration agreement
When:
Before or during the arbitration

Jurisdiction:
Before - national tribunal
During - national tribunal / arbitral tribunal BUT if the parties
refuse to comply court enforcement
NO REGULATION FOR EMERGENCY ARBITRATOR
The minutes of the arbitral tribunal - action for annulment within
5 days from the communication of the challenged order
The decision of the court of appeal - final

International arbitration
Article 1117 NCPC:
(1) The arbitral tribunal may grant provisional or conservatory
measures of either party, if the arbitration agreement does not provide
otherwise.
(2) If the party concerned does not voluntarily comply with the
measures ordered, the arbitral tribunal may request assistance from the
competent court (tribunalul competent), which shall apply its own law.
The arbitrator or the judge may condition the granting of a provisional
or a conservatory measure on the provision of adequate security.

TIME, PLACE, LANGUAGE

6 MONTHS sanction: lapse of the arbitration
International arbitration: double 1115 (4) 1 year
Article 567 (1) NCPC: If the parties have not provided otherwise,
the arbitral tribunal must render the award not later than 6 months
from its constitution, under the sanction of lapse of the arbitration.
SUSPENSION
Article 567 (2) NCPC: The time limit shall be suspended pending
a challenge or any other ancillary request to the court specified in
Article 547.

EXTENISON: parties/arbitral tribunal

Article 567 (3) NCPC: Within the time limit specified in
paragraph (1), the parties may agree in writing to extend the time
limit for the arbitration.
Article 567 (4) NCPC: The arbitral tribunal can decide, for a
justifiable reason, to extend the time limit for the arbitration once,
for no more than 3 months.
Article 567 (5) NCPC: The time limit for the arbitration shall be
automatically extended by 3 months upon the death of one of the
parties.

Lapse of the arbitration sanction under condition

Article 568 NCPC:
(1)
On the first date when the parties are legally notified to appear
(primul termen de judecata), they must declare in writing, under the sanction
of waiver (decadere), whether they intend to assert that the [time limit for
the] arbitration has expired (caducitate).
(2) When the least one of the parties has made the declaration specified in
paragraph (1), the arbitral tribunal shall make, upon the expiry of the time
limit specified in Article 567, a decision declaring that the [time limit for the]
arbitration has expired, unless the parties have expressly declared in writing
that they waive the right to invoke the lapse, in which case the arbitral
proceedings shall continue.

PLACE
Article 569 NCPC:
The parties shall determine the place of the arbitration. Absent such
provision, the arbitral tribunal shall fix the place of the arbitration.
Abstract concept decided by the parties
NOT THE HEADQUARTERS OF THE ARBITRAL INSTITUTION
CCIR the place of the arbitration is at the headquarters of the Court of
Arbitration in Bucharest

CONSEQUENCES: territorial jurisdiction of the court

LANGUAGE
Article 570 NCPC. Language of arbitration
(1) The proceedings before the arbitral tribunal shall take place in the
language specified in the arbitration agreement or, if the arbitration agreement
is silent or no subsequent agreement has been reached, in the language of the
contract in relation to which the dispute arose, or, if the parties do not agree, in
a language of international usage fixed by the arbitral tribunal.
(2)If a party does not know the language of the proceedings, the tribunal shall
ensure the services of a translator, at the request of that party and at its
expense.
(3)

Parties may participate in the proceedings with their own translator.

LANGUAGE
Arbitration agreement
Contract
Arbitral tribunal language of international usage

International arbitration Article 1116 NCPC

identical

FIRST HEARING
Article 578 NCPC. Examination of the file
(1)
Upon the expiry of the time limit in which the statement of defense must be
filed, the arbitral tribunal shall examine whether the dispute is ripe for hearings and,
if it considers it necessary, it shall order the necessary measures for completing the
file.
After this examination or, where relevant, after the completion of the file, the
arbitral tribunal shall fix the hearing date and shall notify the parties.
Article 580 NCPC. Term for notification
Between the receipt of the first notice and the hearing date there must be an
interval of at least 15 days.
Meanings:
Enumerate connotations (last chance to: -, -, -.)

HEARINGS
Participation
Article 582 NCPC. Absence of a party
The absence of a party that was legally notified shall not impede the
proceedings, unless the absent party requests, at least 3 days before the hearing
date, a postponement on serious grounds and notifies the other party and the
arbitrators of this request within the same time limit. The arbitral tribunal shall
have exclusive competence to determine whether the grounds for a partys
absence are well-founded and whether they justify the postponement of the
hearing, its decision being final.
Article 583 NCPC. Requesting resolution of the dispute in absentia
Any party may request in writing that the dispute be resolved in its absence,
based on the evidence submitted in the case. The provisions of Article 580 shall
apply accordingly.

Article 584 NCPC. Absence of both parties

If both parties, though legally notified, fail to appear on the hearing
date, the arbitral tribunal shall resolve the dispute, unless a
postponement was requested on serious grounds. The arbitral tribunal
shall have exclusive competence to determine whether the grounds
for postponement are well founded, its decision being final.
Even if the parties do not request a postponement, the arbitral tribunal
may postpone the hearings by notifying the parties if it considers that
their presence at the hearings is necessary or by granting a time limit
within which the parties may submit written pleadings.
Can the arbitral tribunal suspend the proceedings due to the absence
of the parties?

EVIDENCES
Article 586 NCPC. Burden of proof
(1) Each party bears the burden of proving the facts
supporting its claim or defense in the dispute.
(2) In order to resolve the dispute, the arbitral tribunal
may solicit written explanations from the parties related
to the subject matter of the request [for arbitration] and
the facts of the dispute, and it may order the submission
of any type of evidence provided by law.

PROPOSAL
When:
Article 587 (1) NCPC:
The evidence that was not sought in the request for arbitration
or statement of defense cannot be requested during the
proceedings, except for the cases provided for in Article 254(2).

Calendar:
Article 587 (2) NCPC:
The arbitral tribunal shall have exclusive competence to
determine the materiality, relevance and weight of the evidence
proposed by the parties. After consulting with the parties, the
arbitral tribunal may fix deadlines for the submission of the
approved evidence (probe ncuviintate). Upon the expiry of
these deadlines, the submission of evidence cannot take place
unless the tribunal considers that this is essential for the
appropriate resolution of the dispute.
Sanction: WAIVER

SUBMISSION:
Article 588 NCPC. Submission of evidence
(1) The submission of evidence is made during the
hearings. The tribunal may order that the submission of
evidence be made before the presiding arbitrator [alone] or,
with the agreement of the parties, before [any] member of
the arbitral tribunal.
(2) The arbitral tribunal may order the production of any
evidence held by one of the parties.

DOCUMENTS
Article 592 (2) NCPC:
Any applications and documents shall be submitted not later than the first
date to which the parties were legally notified to appear. The provisions of
Article 587 shall apply accordingly.
Article 590 NCPC. Information held by public authorities
(1)
The arbitral tribunal may request written information from the public
authorities about their actions that are necessary for the resolution of the
dispute.
(2) If the public authority refuses to provide such information, although the
requirements set forth in Article 298(2) are not met, the parties or the
arbitrators may address the court specified in Article 547, which will order the
measures specified in Article 298(1).

WITNESSES & EXPERTS

Article 589 NCPC. Hearing of witnesses and experts
(1)

Witnesses and experts shall be heard without administering an oath.

(2)Witnesses and experts may be heard, at their request or with their

consent, at their residence or place of business. The arbitral tribunal shall
also ask them to provide written answers to its questions, granting them a
time limit towards this end.
(3)The arbitral tribunal can neither compel nor sanction witnesses or
experts. To obtain such measures, the parties may address the court
specified in Article 547.

International Arbitration:
Article 1118 NCPC. Administration of evidence
(1)

The arbitral tribunal shall administer the evidence.

(2) If the court support is necessary for the administration of evidence, the arbitral
tribunal or the parties with the arbitral tribunals concurrence may request assistance
from the court (tribunalul) at the place of arbitration, which shall apply its own law.
Article 591 NCPC. Evaluation of evidence
The arbitrators shall evaluate the evidence pursuant to their personal conviction.
SANCTION FOR THE ABSENCE OF EVIDENCES:
The claim is rejected as NOT GROUNDED (res judicata!)

OBJECTIONS
pleas)

(procedural

Article 592(1) NCPC:

Any objects related to the existence and validity of the arbitration
agreement, the constitution of the tribunal, the scope of the arbitrators
mandate and the administration of the proceedings before the first date
when the party was legally notified to appear must be raised, under the
sanction of waiver (sanctiunea decarerii), not later than this term, unless a
shorter term was fixed.
Article 592(3) NCPC:
Any procedural irregularity shall be accepted if the interested party does not
raise it at the term it occurred or, if it failed to appear at that term, then at
the first date when it was present or legally notified to appear after the
irregularity occurred but before the parties submit their arguments on the
merits.

Can the arbitral tribunal raise the extinctive

prescription objection ex officio?
Is joining the files before the arbitral tribunal possible?
Connexity plea
Lis alibi pendens (litispendena) objection that the
proceedings on the same issue are pending in another
court

SUSPENSION OF THE
PROCEEDINGS &
SUPERANNUATION
- The proceedings can be suspended the arbitration
will continue after the cause ceases
The minutes can be challenged as long as the
suspension lasts action for annulment + common law
provisions!
- The proceedings can lapse (become out of date) 6
months after the last procedural act

CONVEYANCES (deed of gift)

The parities can dispose of their right of property
through:
- Waive arbitration or the right settled through
arbitration itself
- Conclude a transaction agreement Expedient
arbitral award
- Accept the claims of the opponent party or waive the
right to file an annulment claim of the arbitral award
(ONLY after it is rendered Article 609 NCPC)

COSTS
- Organization and administration of the proceedings
- Arbitrators fees
- Expenses (evidences, travel expenses etc.)
Arbitration agreement
In the absence the losing party

Ad hoc arbitration Articles 595-600 NCPC

Institutional arbitration Rules of the permanent institution
Arbitrators fees
The provisional amount the parties may be held jointly to
deposit the amount
If the respondent fails to comply the claimant shall deposit the
entire amount
The payment after the award is communicated (other costs
before otherwise, the award is not communicated)
If the arbitration is suspended the fees shall be reduced
proportionally to the services rendered

The arbitral tribunal may not commence the proceedings until

the deposit, advance or payment of the costs.
The costs can be challenged in front of the national court
enforceable and non-appealable decision.

What happens when the arbitral award is annulled and the court
of appeal remands the dispute to the arbitral tribunal?

International arbitration
Article 1122 NCPC
Unless the parties otherwise provide, the arbitrators fees and
travel expenses are borne by the appointing party.
Sole arbitrator / President the parties shall bear the expenses
in equal shares

ARBITRAL TRIBUNAL HEARING

MINUTES
Article 593 NCPC. Hearing record (ncheierea de
edin)
(1) The oral arguments shall be recorded in the
hearing record.
(2) Any order of the arbitral tribunal shall be recorded
in the hearing record and shall be reasoned.

Elements:
The hearing record shall include:
a) Name of the arbitrators, place & date;
b) Coordinates of the parties & participants;
c) A brief description of the session;
d) The applications and submissions of the parties;
e) The grounds underlying the orders [of the arbitral tribunal];
f)

The dispositive part;

g) The signatures of the arbitrators; The dissenting arbitrator shall draft and
sign the separate/concurring opinion.

Article 593 (5) NCPC:

The parties have the right to examine the
interlocutory orders and the documents on file. The
arbitral tribunal may subsequently correct or amend
the hearing record by issuing another hearing record at
the request of the parties or by its own motion. Upon
request, a copy of the hearing record shall be
communicated to the parties.

Article 594 NCPC. Challenges to the hearing record

Action for annulment:
a) Orders suspending the arbitral proceedings so long as the proceedings
are suspended;
b) Orders directing conservatory or provisional measures &
c) Orders rejecting as inadmissible the petition to seize the Constitutional
Court on the constitutionality of a legal provision - within 5 days from the
communication of the challenged order.
In the action for annulment, besides the grounds specified for the
annulment action, the initiating party may also invoke the failure to comply
with the conditions provided by the law.
The court of appeal may, depending on the circumstances, maintain, modify
or terminate the measures that the arbitral tribunal ordered in the hearing

Title IV. ARBITRAL AWARD

Article 602 NCPC. Deliberations and issuance of the award
(1)
In all cases, the issuance of the award must be preceded by the secret
deliberation of the arbitrators, pursuant to the method set forth in the
arbitration agreement, or, in the absence thereof, by the arbitral tribunal.
(2) The issuance of the award may be postponed by a maximum of 21 days,
provided that it falls within the time limit for the arbitration.
(3) The award shall be made by a majority of votes.
(4) After deliberations, the minutes shall be drafted, briefly summarizing the
dispositive part of the award and indicating dissenting opinions, if any.

FORM & CONTENTS

Written form
Introduction
Reasons
Dispositive

Article 603. Arbitral award

(1) The award shall be made in writing and must contain:
a) The names of the arbitrators as well as the place and the date of the issuance of the award;
b) Coordinates of the parties, representatives and any other participant;
c) A reference to the arbitration agreement underlying the proceedings;
d) The subject matter of the dispute and a brief description of the submissions of the parties;
e) The factual and legal grounds for the award and, in the case of arbitration ex aequo et bono, the
grounds leading to the solution;
f) The dispositive part;
g) The signatures of all arbitrators and, where applicable, the signature of the secretary of the tribunal.
(2) The disserting arbitrator shall sign a separate opinion, showing the grounds upon which it is based. This
rule also applies to concurring opinions.

Interpretation, amendment
and correction
Article 604. Interpretation, amendment and correction of the
award
Interpretation
Where clarifications are necessary regarding the meaning,
scope or application of the dispositive part of the award or the
award contains contradictory provisions, any party may ask the
arbitral tribunal to interpret the dispositive part of the award or
to remove the contradictory provisions.

Amendment
If the arbitral tribunal failed to deal with a main claim, [or] an
ancillary or an incidental claim in the arbitral award, any party
may request an amendment of the award.
The request to interpret or amend the award must be submitted
within 10 days from the receipt of the award and shall be
resolved by the arbitral tribunal, after notifying the parties, in
a separate award.

Correction
Material errors in the arbitral award or other manifest errors
that do not alter the result or the merits, as well as calculation
errors, may be corrected by an order (ncheiere), upon the
request of either party that is submitted within the time limit of
10 days, or by the tribunal on its own motion. The parties will
be notified if the tribunal considers it necessary.

The interpretation award, the supplemental award or the

rectification order (ncheierea de ndreptare) shall be made
without delay and shall be an integral part of the arbitral award.

The parties cannot be compelled to pay the costs associated

with the interpretation, amendment or rectification of the
award.

Effects
Divesting the arbitral tribunal

Artcile 606 NCPC: The arbitral award communicated to the parties is final
and binding.
Res judicata
Enforceable character
Evidentiary character

ACTION FOR ANNULMENT

REASONS
Article 608 (1) NCPC: The arbitral award may only be set aside
through an action for annulment for one of the following reasons:
a) The dispute was not capable of resolution by arbitration;
b) The arbitral tribunal resolved the dispute in the absence of an arbitration
agreement or based on an agreement that was null or inoperative;
c) The arbitral tribunal was not constituted in accordance with the arbitration
agreement;
d) The party was not present at the oral argument and the notification
procedure was not legally completed;
e) The award was made after the expiry of the time limit for the arbitration
even if at least one of the parties declared that it understood

f) The arbitral tribunal dealt with matters not requested by the parties or
awarded more than it was requested; PLUS/EXTRA PETITA
g) The arbitral award does not contain the dispositive part and the
reasoning, does not indicate the date and place of issuance, or is not
signed by the arbitrators;
h) The arbitral award infringes public order, good morals or the mandatory
provisions of the law;
i) If, after the award is made, the Constitutional Court decides on an
objection raised in that case, declaring unconstitutional a law, a
government ordinance or a provision of law or an ordinance that was the
subject of that objection, or other provisions from the challenged
legislation which, necessarily and clearly, cannot be dissociated from the
provisions mentioned in the action for annulment.

NB Restricted enumeration the reasons shall not be

extended

Public order
Absence or nullity of the arbitration agreement or disregard to the parties
consent
Disrespect of the procedural rules
NO:
- the discontentment of the parties related to the solution the annulment
claim does not involve a re-examination of the decision on the merits
-

the construction of substantial legal provision

the interpretation of the evidences

SETTLEMENT OF THE ACTION FOR ANNULMENT

Jurisdiction Article 610 NCPC:
The action for annulment falls within the competence of the court of appeal in the jurisdiction
where the arbitration took place.
Time limit
Article 611 NCPC. Time limit for the application
The application for annulment shall be filed with the court of appeal within 1 MONTH from the
date when the arbitral award was communicated.
Interpretation, amendment or correction, the time limit runs from the date of the
communication of the award or, as the case may be, of the order (ncheiere) by which the
application was resolved.
A legal provision was declared unconstitutional - 3 MONTHS from the publication of the
decision of the Constitutional Court in the Romanian Official Gazette.

PROCEEDINGS
Article 613 NCPC. Resolution of the action for annulment
When deciding the action for annulment, the court of appeal
shall sit in panels as provided by law for deciding cases in first
instance proceedings. 1 JUDGE
The statement of defense shall be mandatory.

Evidences
ONLY documents

Suspension
Article 612 NCPC: The court of appeal can suspend the
execution of the arbitral award against which an action for
annulment was filed.
Security maximum 10% (see Article 718 NCPC)
Parties are summoned
Hearing within 10 days, decision 48 hours; final decision
For grounded reasons, the court of appeal can revoke the
suspension

SETTLEMENT
Reject, annul or admit the claim
On finding the action for annulment admissible, the
court of appeal shall annul the arbitral award and
shall:
a) Dispute not arbitrable, no arbitration agreement, lapse of
arbitration - send the dispute for resolution to the competent
court;

b) In all other cases specified in Article 608, REMAND THE DISPUTE TO

THE ARBITRAL TRIBUNAL, IF AT LEAST ONE OF THE PARTIES
EXPRESSLY SO REQUESTS. Otherwise, if the dispute is ripe for
resolution the court of appeal shall decide the merits within the
scope of the arbitration agreement. 1 DECISION
If, however, the court of appeal needs new evidence to decide the
merits, the court shall render a decision after the administration of such
evidence. In this latter case, the court shall first render the annulment
decision and then, after the evidence is administered, shall decide the
merits, and, if the parties expressly agreed that the dispute shall be
resolved by the arbitral tribunal ex aequo et bono, the court of appeal will
decide in that manner. 2 DECISIONS when new evidences are submitted

Challenge the court of appeals solution

The decisions of the court of appeal rendered are
subject to appeal (recurs).
- Supreme Court 3 judges
- Restricted reasons for the recourse legal matters,
not the examination of the merits of the decision

International arbitration
Article 1121 NCPC. Award
(1)
The arbitral award shall be made in accordance with the procedure agreed by
the parties. In the absence of any such provision in the arbitration agreement, the
arbitral award shall be made by a majority of votes, and in case there is no majority
the decision of the presiding arbitrator shall prevail.
(2) The arbitral award shall be in writing, shall state the reasons, and shall be dated
and signed by all the arbitrators.
(3) The arbitral award shall be final and binding upon communication to the parties
and may be challenged only through an action for annulment on the grounds and
under the conditions set forth in Book IV, which shall apply accordingly.
(4) The arbitral tribunal may render partial awards, unless the arbitration agreement
provides otherwise.

ENFORCEMENT OF THE
ARBITRAL AWARD
Article 614 NCPC. Voluntary enforcement
The party against whom the award was rendered shall
voluntarily carry out the award without delay or within the time
limit specified therein.

Article 615 NCPC. Compulsory enforcement

The arbitral award constitutes a writ of execution and, after the enforcement
procedure, shall be enforced in the same manner as the court judgment.
1. Writ of execution (formul executorie) court of first instance (judectoria)
-

Headquarters of the creditor

No subpoena

The court checks the formal conditions of the writ of execution

- If the writ of execution is refused the minutes can be appealed within 5

days from the communication
2. The bailiffs order for the authorization of the enforcement the bailiff

Title VI. RECOGNITION AND ENFORCEMENT

OF FOREIGN ARBITRAL AWARDS
Foreign arbitral awards
Article 1124 NCPC. Definition
Any domestic arbitral awards rendered in another state and which are
not considered national awards in Romania are foreign arbitral awards.
Book VII NCPC:
- subsidiary application
- see the New York Convention dated June 10, 1958 on the recognition
and enforcement of arbitral awards ratified in 1961 under two conditions:
commercial litigations according to the Romanian Law + reciprocity for
non-signatories States.

Article 1125 NCPC. Validity

2 conditions:
- Arbitrability
- Public order
Any foreign arbitral award shall be recognized and may be
enforced in Romania if the underlying dispute can be
resolved through arbitration in Romania and the award
does not infringe any public order provisions of the
Romanian private international law.

Article 1126 NCPC. Competent court

The recognition and enforcement of foreign awards shall be
requested to the court (tribunalul) at the defendant's domicile
or, as the case may be, the headquarters of the party against
which the arbitral award was rendered.
If it is impossible to determine the court (tribunalul) specified in
paragraph (1), the Bucharest Court (Tribunalul Bucuresti) shall
be the competent court.

Article 1127 NCPC. Request [for recognition and enforcement]

(1) The party relying on a foreign arbitral award may merely
request its recognition with the aim of invoking res judicata or it
may request the enforcement [of the arbitral award] on
Romanian territory when [the arbitral award] is not voluntarily
complied with in Romania.
(2)The recognition of a foreign arbitral award may also be
requested as an auxiliary matter.
(3)The request interrupts the prescription of the right to enforce
the arbitral award.

Article 1128 NCPC. Documents accompanying the request

(1) The request shall be accompanied by the original or by a
Copy of the arbitral award and the arbitration agreement, which
shall be notarized (supralegalizate).
(2)If the documents specified in paragraph (1) are not drafted in
the Romanian language, the requesting party must also present
the certified translation in Romanian.

Article 1129 NCPC. Grounds for refusal of recognition and enforcement

(1) Recognition and enforcement of foreign arbitral awards shall be refused
if the party against whom the foreign arbitral award is invoked proves the
existence of one of the following circumstances:
a) The parties did not have the capacity to conclude the arbitration agreement,
under the law applicable to each of them in accordance with the law of the State
where the arbitral award has been made;
b) The arbitration agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereof, under the law of the country where
the arbitral award was made;
c) The party against whom the arbitral award is invoked was not given proper notice
of the appointment of the arbitrator or of the arbitration proceedings or was
otherwise unable to present its defense in the arbitration;

RECOGNITION AND
ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
d) The constitution of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, or, absent such agreement, was
not in accordance with the law of the place where the arbitration took place;
e) The arbitral award deals with a difference not contemplated by or not falling
within the terms of the arbitration agreement, or it contains decisions on matters
beyond the scope of the arbitration agreement. If, however, the decisions
contained in the arbitral award that concern matters submitted to arbitration can
be separated from those not so submitted, the former may be recognized and
enforced; or
f) The arbitral award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country in which, or under the
law of which, that award was made.

Article 1130 NCPC. Suspension of the proceedings

(1) The court (tribunalul) may suspend the recognition and
enforcement of foreign arbitral awards if the annulment or
suspension is requested before the competent authority of the
State in which, or under the law of which, that award was made.
(2)In the case specified in paragraph (1), the court may require,
at the request of the party applying for the recognition and
enforcement of the foreign award, that the order party provides
appropriate security.

Article 1131 NCPC. Decision

(1) The request for recognition and enforcement of a foreign
arbitral award shall be determined by a decision given after the
parties have been summoned and [that decision] can only be
attacked by an appeal.
(2)The request may be decided without summoning the parties
if it appears from the arbitral award that the defendant did not
object to the filing of the action [for recognition and
enforcement].

Article 1132 NCPC. Evidentiary character

Foreign arbitral awards rendered by a competent arbitral
tribunal have evidentiary character in Romania in relation to the
facts that they establish.

Article 1133 NCPC. Examining the merits of the case

The court (tribunalul) cannot examine the merits of the arbitral
award.

Thank you!

& Good luck!