Proceedings subsequent to issuance of awardInterpretation and correction of awards
Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
The award can be corrected ex officio or upon the request of the parties, whereas the interpretation may be decided only based on parties’ request. In the case of arbitration under the NCPC, article 604 provides that the concerned party may submit a claim for the correction of clerical errors, for interpretation or for completion within 10 days of the service date.
In the case of arbitration under the Rules of the Court of Arbitration, errors or omissions with respect to the name, capacity and arguments of the parties or calculation errors or omissions, as well as any other clerical errors in the award or in the procedural orders can be corrected by the motion of the tribunal or following a request by a party, to be filed within 15 days from the date of communication of the award. Within 15 days from the service date the parties may submit motion for interpretation or for the completion of an arbitral award.Challenge of awards
How and on what grounds can awards be challenged and set aside?
Pursuant to article 608 of the NCPC, an award can be challenged only by means of a motion for setting aside on the following grounds:
- the dispute was not subject to arbitration;
- the arbitral tribunal settled the dispute without any arbitration agreement or the arbitration agreement was null and void or not enforceable;
- the arbitral tribunal was constituted with the non-observance of the arbitration agreement;
- the party was not present at the debate hearing and the service was unlawfully made;
- at least one party announced its interest in raising the caducity, the award was delivered after the expiry of the caducity term set out in article 567 of the NCPC and the parties did not agree on continuing the proceeding pursuant to article 568(1) and (2) of the NCPC;
- the arbitral tribunal settled the dispute extra petita or ultra petita;
- the award does not contain the operative part (the court decision) and its reasoning, indicate the date and the place of delivering, or contain the signatures of the arbitrators;
- the award infringes public policy, morals and the mandatory provisions of the law; and
- if, after delivering the award, the Constitutional Court issued a judgment on the plea raised in the file, stating the non-constitutionality of the law, the ordinance or the provision from a law or an ordinance that forms the object of the plea or of other provisions from the contested enactment is not to be dissociated from the provisions indicated in the referral to send the plea to the Constitutional Court.
How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?
The decision on a motion to set aside an arbitral award can only be challenged by an appeal on points of law. For the motion to set aside the judgment, the judicial stamp tax is established based on the value of claims. The appeal on points of law is subject to judicial stamp tax evaluated depending on the indicated ground of appeal, pursuant to Government Emergency Ordinance No. 80/2013 on the judicial stamp tax.
The period for deciding on a motion to set aside the judgment may vary between six months and two years for each level.
Costs are generally represented by the judicial stamp tax, as the case may be, and by the fees of the attorney.
According to the NCPC, the costs are borne by the losing party, but the court retains the liberty to decide whether the costs are to be entirely reimbursed to the winning party.Recognition and enforcement
What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?
First, to have the awards enforced, leave by the court must be provided based on an application by the concerned party pursuant to article 1126 of the NCPC. The party may follow the provisions of either the New York Convention or the NCPC.
Second, the principle enshrined in article 1125 of the NCPC is that any foreign arbitral award may be recognised and enforced in Romania insofar as the dispute may be subject to arbitration in Romania, and as long as the award has no provision inconsistent with Romanian public policy. Failure to comply with the two requirements implies a refusal to enforce the award.
Third, as far as other impediments to enforcement are concerned, the NCPC of Romania provides under article 1129 for the following cases when the enforcement of a foreign arbitral award may be hindered:
- the parties were unable to conclude the arbitration agreement, according to their own law, established pursuant to the law of the state where the award was rendered;
- the arbitration agreement was void pursuant to the law elected by the parties or, failing such election, pursuant to the law of the state where the award was rendered;
- the party against which the award is enforced was not duly informed on the appointment of the arbitrators or on the arbitration proceedings, or it was unable to defend in arbitral dispute;
- the appointment of the arbitral tribunal or the arbitration proceedings violated the convention of the parties or, failing such convention, the law of the place of arbitration;
- the award deals with a dispute not provided by the arbitration convention or outside the limit set out by such convention or comprises provisions exceeding the terms of the arbitral convention. However, as long as the provisions from the award dealing with the aspects subject to arbitration may be separated from those regarding aspects not subject to arbitration, the former are to be recognised and enforced; or
- the award is not yet binding on the parties, or it was set aside or stayed by a competent authority from the state where or pursuant to which it was rendered.
Is there a limitation period for the enforcement of arbitral awards?
The first principle under Romanian law is that arbitral awards are voluntarily enforced by the parties. The second principle is that arbitral awards are to be enforced in the same manner as a court of law judgment where the party in default fails to comply with the award. The third principle is that under the article 706 of the NCPC, the right to ask and obtain the enforcement of an award is subject to a statute of limitation. The statute of limitation is of three years in case of obligations and of 10 years in case of property rights.Enforcement of foreign awards
What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?
An award set aside by a court at the place of arbitration cannot be enforced on Romanian territory.Enforcement of orders by emergency arbitrators
Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?
There are no provisions contained in the NCPC in connection with the appointment of an emergency arbitrator.
In accordance with Annex II of the Rules of the Court of Arbitration, a party may apply for the appointment of an emergency arbitrator for interim or conservatory measures requested, and the powers of such arbitrator terminate on the date when the arbitral tribunal is constituted. Within two days from its appointment, the emergency arbitrator shall establish an interim procedural timetable and decide with respect to the need to provide a security deposit, as well as with respect to the period in which the party against which the interim or conservatory measure is sought may submit its answer to the request. Any procedural order with respect to the interim or conservatory measures shall be issued no later than 10 days from the date when the appointment was communicated to the emergency arbitrator. The president of the Court of Arbitration may extend this period upon a reasoned request of the emergency arbitrator. A procedural order shall be binding upon the parties when rendered. Upon a reasoned request of a party, the emergency arbitrator may amend or revoke the procedural order. By agreeing to arbitration under the Rules, the parties undertake to immediately comply with any procedural orders regarding the interim or conservatory measures ordered by the emergency arbitrator. Where a party fails to comply with the procedural order regarding the interim or conservatory measures, the concerned party may resort to the domestic courts to obtain a judgment enforceable with the aid of a bailiff.
Article 9(5) of Annex II of the Rules of the Court of Arbitration provides that the arbitral tribunal is not bound by the procedural order or by the reasons held by an emergency arbitrator, and may amend or cancel the interim or conservatory measures taken by such arbitrator.Cost of enforcement
What costs are incurred in enforcing awards?
In enforcing awards, the concerned party may incur, inter alia, the following costs:
- costs of the attorneys;
- fees of the bailiff;
- judicial stamp tax for enforcing the award provided by Government Emergency Ordinance No. 80/2013; and
- other costs that might occur in the case of challenging the enforcement procedure.