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Starting an arbitration proceeding
What is needed to commence arbitration?
In order to commence arbitration a party must submit to the arbitral tribunal its written request for arbitration. If the parties have agreed on ad hoc arbitration, the first step is to establish the composition of the arbitral tribunal. If the composition is not stipulated in the arbitration agreement, the party requesting arbitration shall invite the other party in writing to proceed with the procedure to appoint the arbitrators. Where the arbitration is held under the purview of an arbitral institution, the parties shall follow the procedural rules of that institution. In the majority of cases (including before The Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania), the party which wishes to commence arbitration must first file the request for arbitration with the secretariat of the arbitral institution. A fixed filing fee is generally required.
Are there any limitation periods for the commencement of arbitration?
The statute of limitation is subject to the determination of the applicable law by the arbitral tribunal. Under Romanian law, the statute of limitation is a matter of substantive law; therefore, where the arbitral tribunal will assess that the statute of limitations is a substantive matter and that the dispute is governed by substantive Romanian law, it may allow any defence regarding the time bar of the claims submitted to arbitration applying the Romanian law on the statute of limitations.
Are there any procedural rules that arbitrators must follow?
The Code of Civil Procedure provides a general framework of procedural rules for conducting arbitral proceedings. The parties are free to agree on particular procedural rules or to confer such power on the arbitrator, subject to the limitations imposed by public policy, mandatory legal provisions and morals.
Are dissenting opinions permitted under the law of your jurisdiction?
Dissenting opinions are permitted under the arbitration law. If an arbitrator dissents from the award, he or she shall prepare a reasoned separate opinion.
Can local courts intervene in proceedings?
The local courts can intervene in proceedings in order to perform certain functions of assisting and supervising the arbitration. In this respect, a local court may assist by exercising its compulsion powers to remove any impediments that may prevent arbitration from taking place. For instance, the local court may assist the arbitral tribunal by exercising compulsion or penalising witnesses and experts, or it may order the production of evidence where a party or third party to arbitration refuses production before the arbitral tribunal (and such order is fully enforceable). The local court may also examine a challenge against an arbitrator if the parties fail to agree on a different procedure.
Can the local courts assist in choosing arbitrators?
Local courts have no prerogative to assist the parties in choosing arbitrators.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
The arbitral tribunal cannot compel the parties to arbitrate or third parties to participate or assist in arbitration. Once a dispute has been referred to arbitration, it can examine the case and render an award irrespective of whether one or both parties participate in the proceedings. However, in order to ensure a fair trial, the parties must be notified of the arbitral proceedings.
In what instances can third parties be bound by an arbitration agreement or award?
Under Romanian law, the arbitration agreement and the award may not impose obligations on third parties. Debate is ongoing over the extension of the arbitration agreement to non-signatories – for example, following their direct involvement in the negotiation, performance or termination of a contract containing an arbitration clause – but existing law provides no such remedy. Conventional or legal successors of the signatory are generally bound by the arbitration agreement.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
Unless agreed otherwise by the parties, the arbitration shall be conducted in the language of the contract underlying the dispute or in an international language determined by the arbitral tribunal. Similarly, barring agreement by the parties in this regard, the place of arbitration shall be decided by the arbitral tribunal.
How is evidence obtained by the tribunal?
In general, the default rule is that the parties submit the evidence on which they intend to rely in limine litis (at the start of the procedure). The tribunal can order a party to produce certain evidence; however, in order to seek enforceable measures efficiently, the parties have recourse to local courts, where they can request the court’s order for production.
What kinds of evidence are acceptable?
Under the law the following are accepted as evidence:
- documentary evidence;
- parties’ and witness statements;
- material means of evidence;
- on-site investigations; and
Is confidentiality ensured?
The Code of Civil Procedure imposes a confidentiality obligation on the arbitrator, to the effect that the arbitrator may be held liable for disclosing or publishing arbitration information without parties’ permission. There are no other express provisions on confidentiality in the law.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
The arbitration law imposes no express confidentiality obligation on the parties. However, it is widely held that a confidentiality requirement is inherent to arbitration agreements. Against such background, practitioners are inclined to consider that the parties must assess carefully if or how information received in a previous arbitration can be used in subsequent proceedings. Regarding the arbitrators, a confidentiality duty exists for an unlimited period of time and is provided for explicitly, to the effect that the arbitrators may be held liable for any unauthorised disclosure.
When the parties agree to arbitrate under the purview of an arbitral institution, any additional confidentiality requirements provided in that institution’s arbitration rules shall complement the legislative provisions regarding confidentiality. For instance, rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania provide for the confidentiality of the file, confidentiality imposed on court personnel and a prohibition against publication of the award.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Counsel are subject to the strict requirements under Romanian legislation and codes of conduct regarding lawyers’ practice. Regarding arbitrators, there is no specific body of law or rules regarding their ethical obligations.
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