Investment treaty practice in Romania

Investment treaty practice

Does the state have a model BIT?

Romania does not have a model BIT. Nonetheless, analysis of the BITs signed by Romania after 1990 illustrates that many of the clauses inserted therein are similar to most BITs, reflecting the country’s interest in ensuring a uniform protection of the foreign investors in Romania, as well as offering comparable business conditions for national investors in foreign countries.

Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?

Romania has a central repository of treaty preparatory materials, as well as treaties and agreements to which the country is a signatory party, at the Diplomatic Archives, in Bucharest. One of its sections - the Fund of the Historic Archives - also holds records of documents related to the state’s foreign policy, some of which date back to the beginning of the 19th century.

The documents, which consist of preparatory files, correspondence between governments and diplomatic reports, can be consulted on site, upon request. Some of the documents are available in electronic form, although most can only be accessed in physical form.

However, some of the available data is classified and, pursuant to Law No. 16/1996 on the National Archives, can only be consulted by the public upon the expiry of a certain deadline (usually, a 50-year term).

Interested persons can obtain copies from non-classified documents, free of charge, after prior approval of the archives of the Ministry of Foreign Affairs. Personnel can help in searching and identifying relevant documents.

In addition, some materials concerning the state’s foreign relations with other countries - including documents dating back to the 17th century - are available for on-site consultation at the National Library of Romania (see: www.bibnat.ro).

The BITs applicable to Romania are available on the United Nations Conference on Trade and Development website (see: https://investmentpolicy.unctad.org/international-investment-agreements/countries/174/romania?type=bits). Moreover, the bilateral and multilateral treaties to which Romania is party, which apply to many domains, are available on the Ministry of Foreign Affairs’ site (see: www.mae.ro/tratate).

What is the typical scope of coverage of investment treaties?

Investments falling under the scope of the BITs concluded by Romania cover a wide range of assets, including movable and immovable property and other property rights such as mortgages, shares, bonds and other kinds of legal interests in companies, intellectual property rights, receivables, business concessions conferred by law or under contract, claims to any activity having an economic value. The protection is offered to any foreign investor, understood, as a general rule, as any citizen of a contracting party or as any legal entity incorporated under the laws of the state where its headquarters are located.

From a general perspective, the main scope of the BITs concluded by Romania with other states is to promote and to protect the investments and to offer sufficient guarantees to investors for a safe business climate on the contracting parties’ jurisdictions.

What substantive protections are typically available?

BITs concluded by Romania offer a bundle of protections to foreign investors, such as:

• protection against expropriation or equivalent measures;
• the right to a fair and equitable treatment;
• the right to repatriate incomes and other funds;
• a full protection clause; and
• a guaranteed treatment, in line with that granted by the host state to its most-favoured nation or to its own nationals.

What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?

In addition to submitting a dispute to ICSID, a number of BITs concluded by Romania provide for other options, such as referring the dispute to the domestic courts of the contracting party’s state on whose territory the investment was made or to an ad hoc arbitral tribunal established under United Nations Commission on International Trade Law rules of arbitration, as in the case of:

• the Treaty between the Government of Romania and the Government of the United States of America on Mutual Encouragement and the Safeguarding of Investments, of 28 May 1992;
• the Agreement between the Government of Romania and the Government of the Republic of Peru for the Promotion and Safeguarding of Investments, signed in Lima on 16 May 1994; or
• the Agreement between the Government of Romania and the Government of the Republic of Kazakhstan on the Promotion and the Safeguarding of Investments, of 2 March 2010.

However, no information is available regarding the use of these dispute resolution options in the case of litigation arisen from BITs signed by Romania.

As far as the settlement of disputes by ICSID is concerned, Romania has been involved in several disputes settled under the ICSID Convention. ICSID is, therefore, the most commonly used dispute resolution option for investment disputes.

However, as a result of the quoted Achmea ruling, submitting an intra-EU BIT-based case to an investment court of arbitration might entail certain legal risks, because arbitral tribunals could simply decline jurisdiction for future proceedings brought under intra-EU BITs. On the other hand, if an arbitral tribunal decides not to decline its jurisdiction and it renders an arbitral award, the further enforcement of the award in the EU could be deprived of legal effects. For instance, if the award is issued pursuant to the ICSID rules, such rules do not provide for legal grounds for challenging the award before member state courts (domestic courts). Thus, member states would be under an international obligation to enforce such award. Nonetheless, from the perspective of EU member states, EU law would have primacy over any conflicting international obligations of the member states. Therefore, if an EU member state enforced such an award, the Commission could either launch and infringement case or oblige the member state to recover the amount paid as compensation to the investor, on the basis of a violation of the EU’s state aid rules.

Does the state have an established practice of requiring confidentiality in investment arbitration?

No information is available regarding confidentiality in investment arbitration. In spite of this, the awards concerning Romania are generally publicly available, whereas other documents, such as expert opinions, memorials and hearings transcripts, are not subject to disclosure.

Does the state have an investment insurance agency or programme?

At present, there is no specific investment insurance programme for foreign investments; therefore, there is no special insurance for investors. Nevertheless, the investor may conclude private insurances in connection with their investments.

For deploying certain activities, Romanian law may impose mandatory insurance coverage. For example, the providers of healthcare services, medicine or medical devices, when concluding contracts with the public health authority, are obliged to hold insurance policies against malpractice.