Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

The typical sequence of procedural steps in commercial litigation is as follows:

  • the claim is submitted;
  • the defendant files a statement of defence within 25 days of being served the claim;
  • the claimant may submit a response to the statement of defence within 10 days of receiving the statement of defence; as a rule, the response is not mandatory;
  • the first hearing is set: during the first hearing, procedural aspects such as jurisdiction are discussed, as well as procedural incidents; depending on the number of procedural incidents invoked by the parties, they may be resolved in several hearings with the court ruling over them in turn;
  • should all procedural incidents be rejected, or in cases where there are no incidents, the evidence is discussed then administered (in cases where the evidence consists solely of documents, no supplementary hearings are necessary);
  • several hearings can be granted to administer and discuss all evidence (this is the case if there is a need for expert reports, witnesses or interrogation);
  • once all evidence has been administered, the parties will argue on the merits of the case;
  • the court will rule after analysing the available evidence and the conclusions of the parties. The court may also postpone the ruling to grant the parties the opportunity to submit written conclusions; and
  • once the solution is rendered and the decision served on the parties, they may appeal the decision.
Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes, additional parties may be introduced into the litigation after its commencement at the request of the parties, or if the court deems it necessary.

Consolidating proceedings

Can proceedings be consolidated or split?

The Civil Procedure Code allows both the split and the consolidation of claims. Should two different litigation files have the same parties or the same parties together with other parties, and hold important ties in terms of object and cause, then the files may be joined.

If there are different claims between the same parties included in the original request filed before the court and one or some of them are impeding a swift resolution of the case, the court can also split the claims at the request of the parties, or of its own accord.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

The court will decide based on the available evidence and its own opinion on the case after hearing the parties in the debates. Should the evidence be concise and explanatory for the claimant, the court will rule in its favour. Should the evidence prove the contrary or be insufficient, the court will reject the claim.

The principle regarding the burden of proof is that he or she who makes an allegation must offer proof of the same. Therefore, evidence must be submitted by both parties to support their claims and defences.

The judge or judges will fix an hour in the same day for delivering the ruling in the courtroom. Afterwards they will retire to chambers for deliberation. If the ruling cannot be established on the same day, the judges may postpone the same for one or two weeks. In this case, the ruling is available on the court website, or on the touch screens available at the court or at the archive department of the court. Drafting of the reasoning should take 30 days according to the legislation. It generally takes three to four months before the reasoning is delivered, because the courts are busy. The ruling is sent to the parties via the post office, and in rare cases also via email.

How does a court decide what judgments, remedies and orders it will issue?

The decision of the court will be based on the administered evidence and on its understanding of the case. The remedies and orders will be issued in accordance with the applicable law and the principles of equity in cases where the legal provisions leave room for interpretation. The judges will have to decide by themselves on all aspects, including the amount of damages. However, they can rely on expertise performed during the trial. Judges can no longer ask the experts about quantum once the debates on the merits are over and the case is retained for a ruling.

Evidence

How is witness, documentary and expert evidence dealt with?

As a rule, documentary evidence will be submitted together with the claim and the statement of defence by the parties. Additional documentary evidence is allowed if it is conclusive for the case and the party provides convincing arguments that the said evidence could not have been provided earlier, namely jointly with the claim and the statement of defence. The parties can request the postponement of the hearing to analyse new documents.

Witnesses are usually heard in a separate hearing, and their testimony is written during the hearing and kept in the case file.

In cases where an expert report is necessary, the parties will either agree on an expert, or he or she will be appointed randomly by the court from a list registered with the Ministry of Justice. The expert’s advice will be compiled in a written report that will be submitted to the case file. Usually, the parties will be summoned outside the court by the designated expert to take part in the expertise examination.

Given that all evidence is ultimately recorded in writing, there are no advantages or disadvantages to oral evidence as opposed to documentary evidence.

Parties can, however, create a tactical advantage by requesting that evidence be administered in a certain order (eg, viewing a video recording after hearing a witness to disprove the witness’s testimony).

The Civil Procedure Code does not provide a hierarchy of evidence, so the judge is free to decide which piece of evidence he or she finds most convincing. His or her decision must be well argued in the reasoning of the ruling. In practice, the court tends to put high stock on expert reports and supporting documents as opposed to witness testimony, especially in commercial litigation.

How does the court deal with large volumes of commercial or technical evidence?

The courts will appoint a technical expert who will draft a report compiling large volumes of evidence. The court will then take into account the results of the report when ruling on the merits of the case. However, all evidence will also be submitted to the file for direct examination of the judge. As a general rule, the said experts are accredited by the Ministry of Justice.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

Testimony before a foreign court will be given in accordance with the procedural rules of the foreign country in questions. There are no specific regulations issued in Romania on this aspect.

There are no rules specific for foreign witnesses to give testimony in Romania. The Romanian court cannot compel a foreign witness to give testimony in a commercial litigation. In cases where a witness decides to depose voluntarily, he or she will be assisted by a certified translator.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

All evidence will be analysed by the court directly before and during the trial. The judge is free to assess every piece of evidence and decide its relevance and how conclusive it is. The evidence submitted by the claimant is analysed in conjunction with the evidence of the defendant.

Cross-examination is permitted as well as testimonies and expert reports. Witnesses may be confronted and heard again by the judge in cases where their previous testimonies contradict. With respect to expert reports, in the event that an initial report is contested by the parties or is found inconclusive by the judge, the court may order a new report to be provided by a different expert.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

Depending on the complexity of the case and the evidence administered, proceedings can last between six months and several years. In cases where judicial expertise is administered, the duration of the trial is dependent on the timeline of the expertise, and how long it will take for the report to be finalised after objections from the parties and supplementary queries from the judge.

In practice, litigation that involves complex expert reports takes the longest to finalise, while the quickest to be finalised are cases reliant solely on documentary evidence.

The trial can be expedited in cases where a special fast-track procedure is used or if the parties request a swift trial to prevent potential losses and agree upon non-complex evidence.

The hearings are usually set one month apart.

Normally a complex case can take up to two years to be decided in a first instance court and in the appeal phase (thus providing an enforceable ruling). A second appeal may be filed, but it usually takes a year or one--and-a-half years to be solved, due to the high volume of cases pending before the Supreme Court, which is usually in charge of second appeals in commercial litigation. Procedures are relatively long: this is influenced by the fact that, as previously stated, it sometimes takes three or more months for the courts to draft the reasoning of rulings.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

A tactical advantage in the proceedings can be achieved by selectively disclosing information and surprising the opponent. It is important, especially in complex cases, to have several written notes submitted that will outline certain key issues of the case. A lengthy argument presented directly has the disadvantage of confusing the court and making the claim or the defence hard to understand.

As the trial progresses, depending on the evidence and allegations of the other party, the details of the case can be fine-tuned with simple, comprehensive and powerful conclusions to be submitted in the end stages of the litigation.

Once the claim is submitted, parts of it cannot be subject to separate judgment before a different court unless the claim is split.

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

Funding by third parties has no influence on the trial, and the funding third party does not become part of the litigation.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

As a rule, all evidence is administered in court before the judge. Technology is used to record the debates and view video evidence when necessary. Video testimonies or interviews are not permitted, and all relevant communications, including telephone calls, are recorded on paper. Video conferencing might be used in cases where a rogatory commission is formed in another country and the Romanian court is discussing the conclusions of the investigation made by the commission.

Case materials are available electronically exclusively to the parties, but only in certain counties, on a password basis. The electronic programme is being expanded nationwide, but will take some time before being fully implemented.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

All litigation that does not have a criminal basis is judged, in general, according to the Civil Procedure Code. In some areas such as administrative litigation, felonies or consumer rights, special rules apply that complete or replace certain provisions of the Civil Procedure Code. Hence, the typical procedure steps as well as the possible tactical advantages are the same.

As a rule, the same matter cannot be explored in parallel procedures, since only one court is competent to give a valid and legal solution.

Criminal proceedings follow the Criminal Procedure Code. Should a criminal proceeding and a commercial one overlap, the commercial litigation will be stayed until the criminal litigation is finalised.

Private prosecutions before the court are not permitted. The parties can, however, file criminal claims before the public prosecutor, who will investigate the case.