This year, the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania (“Arbitration Court”) introduced a new set of arbitration rules.
One of the most significant changes is that in disputes to be resolved by a panel (formed of three arbitrators), the parties are not allowed to nominate any of the arbitrators. In such cases, similar to disputes to be resolved by a sole arbitrator, all three arbitrators are to be appointed by the Nomination Authority (i.e. an arbitrator appointed by the Management Body of the National Chamber for a seven-year term).
This rule is very different from other arbitration rules (ICC, UNCITRAL, VIAC, ICSID or SCC) and could potentially decrease the trust of the parties in the nomination (and possible even arbitration) process. Traditionally, the parties’ power to nominate arbitrators was considered a major advantage of arbitration over litigation, inspiring confidence in the decision makers (the arbitrators) and consequently the arbitration proceedings.
It is likely that these new rules will lead to some interesting debates regarding the nomination process. Whilst arbitration rules are considered to be procedural rules that will be applicable immediately, this does raise an interesting question with respect to the applicability of the new rules to arbitration clauses concluded before the enactment of the new rules.
In addition, the new rules regarding arbitration costs put an end to debates regarding the value of arbitrators' fees. Previously, arbitrators’ fees were established between a minimum and a maximum fee, on a percentage basis calculated in accordance with the value of the claim, the exact amount being established by the secretary of the Arbitration Court and approved by the president of the Arbitration Court. Under the new rules, arbitrators’ fees are set at a fixed percentage rate calculated in accordance with the value of the claim (the new percentage rate representing the average between the minimum and the maximum fee established under the old rules).