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TITLE I. INTRODUCTION
A. General considerations upon arbitration
Regulation and typology. Arbitrability.
1. Law source
Domestic arbitration, the national procedure for arbitration
Book IV Articles 541 621 NCPC
Book VII International Arbitration
International Conventions:
The Geneva Protocol (1923),
The Geneva Convention dated 1927 upon the recognition of arbitral
awards,
The New York Convention dated June 1958 on the recognition and
enforcement of arbitral awards,
The Washington Convention dated March 1965 by which ICSID
(International Center for Settlement of Investment Disputes) was created,
The Geneva European Convention from 1961.
2. Definition / concept
Article 541 (1) NCPC:
Arbitration is an alternative jurisdiction having a private character.
Arbitration
- private justice by which the settlement of the disputes is submitted to
arbitrators
- a conventional way of settling disputes between parties
- a trust justice - it relies in the confidence placed in the arbitrators appointed by
the parties
- the disputes are settled through binding arbitral awards
Advantages:
Liberty of choice of the parties
The provisions of Book IV are not imperative
Book IV has a subsidiary appliance
The Parties choose the rules of arbitration (see Article 544 NCPC)
The celerity (the arbitral award cannot be appealed, it can only be
challenged through an action for annulment).
Arbitration is flexible and therefore suitable for business
Confidentiality the discretion.
The qualification ad specialization of the arbitrators (e.g. stock exchange).
Inconvenient: the costs luxury extravagant justice.
4. Typology
Not mandatory arbitration as the consented, assumed character
represents the essence of arbitration (see Article 541 NCPC).
Criteria:
The choice of the parties to organize the arbitration themselves or to
submit it to a permanent institution
The parties will to get their trial settled applying the law or ex aequo et
bono
Whether the trial arises from a private law relation with a foreign element
Courts of arbitration:
ICC, LCIA, ICSID
Arbitration Chamber of the Bucharest Stock Exchange
The Court of Arbitration of UCECOM National Union Of
Handicraft And Production Cooperatives
Professions Arbitrations
c) Domestic arbitration
)
ARBITRABILITY:
SUBJECTIVE and Objective Arbitrability
Article 542 (2) NCPC: The state and public authorities have
the right to enter into arbitration agreements only if authorized
by law or by international conventions to which Romania is a
party.
Article 1112 (2) NCPC: If one of the parties to the arbitration
agreement is a State, a Stated owned enterprise or an
organization controlled by the State, this party cannot invoke its
right to contest the arbitrability of a dispute or its capacity to be
a party in the arbitral proceedings.
Objective Arbitrability
1. Patrimony related disputes
2. Disputes which cannot be settled through
arbitration
3. Sensitive Subject-Matters: joint (dual)
disputes
Sensitive Subject-Matters
Joint / dual Disputes Sensitive Subject-Matters
Intellectual property
Corporate Law:
o Exclusive jurisdiction: the dissolution of companies, exclusion of shareholders
o Patrimony related relations between shareholders or between them and the company
Lawyers
Arbitration is mandatory for disputes arising between lawyers
regarding the exercise of their profession. The claim is submitted to the
dean of the bar and the arbitrators must be lawyers for at least 10 years. In
addition to the specific provisions of the Statute, the procedure is governed
by Book IV. It is neither a compulsory arbitration, nor a consented one and
was criticized.
Compulsory elements:
1. Arbitration clause
- Method of appointing the arbitrators (exception: institutional arbitration)
2. Submission agreement
- The subject matter of the dispute - absolute nullity
- The names of the arbitrators or the method of appointment (exception:
institutional arbitration) - curable nullity (void ability)
Formal conditions
Art. 548 NCPC: Written form
(1) The arbitration agreement shall be concluded in writing, under the sanction of nullity.
- Exchange of correspondence or exchanges of procedural submissions
(2) If the arbitration agreement concerns a dispute connected with the transfer of a
property right and/or the creation of another right in rem related to immovable assets,
the arbitration agreement must be authenticated by a notary public under the sanction
of absolute nullity.
Rule written form
Exception Rights in rem: Certified document
Art. 549 (2) NCPC: The existence of an arbitration agreement may be inferred from the
written agreement of the parties made before the arbitral tribunal.
Pathological conventions
Alternative agreements:
The dispute shall be settled by the Court of Arbitration or by the court having
jurisdiction.
Blank agreements:
The disputes shall be settled through an arbitral award.
Arbitration clauses by reference:
A clause of the agreement refers to another contractual document (e.g.
general sales conditions) itself providing an arbitration clause.
Art. 592 (1) NCPC: Any objections related to the existence and validity of the
arbitration agreement () must be raised, under the sanction of waiver (not
tacit consent - SD), not later than the first date when the party was legally
summoned to appear.
Art. 608 NCPC: The arbitral award may be set aside if the arbitral tribunal
settled the dispute in the absence of an arbitration agreement or based on an
agreement that was null, BUT the irregularities that have not been raised in
due time cannot be relied on as grounds for annulling the award.
International Arbitration
Art. 1113 NCPC: Arbitration agreement
(1) The arbitration agreement, in order to be valid, must be concluded in writing, whether
in a document, telegram, telex, scan, electronic mail or any other means of communication
that can be proved through a text.
(2) As to its substance, the arbitration agreement shall be valid if it meets the requirements
prescribed by one of the following laws:
a)
b)
c)
d)
(3) The validity of the arbitration agreement cannot be challenged on the grounds that the
main contract is invalid or because it relates to a dispute that has not yet arisen.
A. THE PARTIES
The parties to a dispute settled through arbitration
The signatories of the arbitration agreement
or
Other persons who consent the settlement of their dispute by the arbitral
tribunal through a binding and final award
- appointing arbitrators
- confidentiality
Procedural co-participation
Multiparty arbitration
Particular consequences:
Appointing arbitrators see art. 556 (3) NCPC
The possibility to have a common representative
? The effects of an arbitral award towards a joint owner when
the arbitral claim for restitution is filed by another co-owner
(art. 643 NCC)
? The impact of the admission of the action for the annulment
of the arbitral award in case of a mandatory co-participation
Representation
Article 546 NCPC: Representation of the parties
(1) In arbitral disputes, parties may make applications and exercise their procedural
rights directly or through a representative. These representatives can be assisted by
other specialists.
(2) In arbitral proceedings, a valid power of attorney provided to a lawyer shall,
unless it provides otherwise, signify the partys choice of a procedural address at the
lawyers office and shall also include the attorneys right to exercise the option
related to the lapse of the arbitration pursuant to Article 568, as well as to request or
accept the extension of the time limit for the arbitration provided for in Article 567.
(3) Paragraphs (1) and (2) shall likewise apply when a party is represented by inhouse counsel.
Number of arbitrators
Article 556 NCPC:
(1) The parties shall determine whether the dispute will be decided by a sole
arbitrator or by a tribunal with an odd number of arbitrators.
(2) If the parties have not agreed on the number of arbitrators, the dispute shall be
decided by three arbitrators, one appointed by each party and the third, presiding
arbitrator shall be designated by the two arbitrators.
Rule:
Collegial structure of the arbitral tribunal (exception:
sole arbitrator)
Odd number of members
Sanction: partial nullity
Solution
International Arbitration
ARBITRATORS
Requirements
Article 555 NCPC: Any natural person with full (legal) capacity may serve as
arbitrator.
Article 4 Rules on the Organization and Operation of the Court of International
Commercial Arbitration attached to CCIR: An arbitrator may be any individual,
Romanian or foreign citizen, with full exercise capacity of his/her rights, who benefits
of an outstanding reputation and enjoys a high level of qualification and professional
expertise in the field of private law, domestic and international economic relations
and commercial arbitration.
Specific requirements: - a law degree
- proof of actual experience in law and juridical activities of at least 8
years
ANY REQUIREMENTS OF THE PARTIES
APPOINTMENT OF
ARBITRATORS
Rules:
Article 556 NCPC:
If there are multiple claimants or multiple respondents, the parties having
common interests shall appoint one arbitrator.
Procedural STEPS:
Appointment of arbitrators according to:
the arbitration agreement
secondarily, Book no. IV NCPC
Obstacles in appointing
arbitrators:
Ad hoc arbitration court of first instance
Article 561 NCPC: Appointment of arbitrators by the court
(1) The party resorting to arbitration may petition the court specified in Article 547(1) to proceed
with the appointment of the arbitrator or, as the case may be, the presiding arbitrator, if the
parties disagree on the appointment of the sole arbitrator, or if a party fails to make its
appointment, or if the two arbitrators do not agree on the presiding arbitrator.
(2) Within 10 days of receiving the position, the court shall, after summoning the parties, render a
decision that shall not be subject to appeal.
Status
Article 565. Liability of arbitrators
Arbitrators are liable, as prescribed by law, for the damage caused if they:
a) Resign, without cause, after accepting the appointment;
b) Fail, without cause, to participate in the resolution of the dispute or do not render
the award within the term required by the arbitration agreement of the law;
c) Do not observe the confidential character of the arbitration, by either publishing
or disclosing information acquired in their capacity as arbitrators without the
parties approval; or
d) Breach other duties in bad faith or gross negligence.
Team activities
Prerogatives of the courts of law in ad hoc and institutional arbitration
Prerogatives of the arbitral institutions
The conditions required for arbitral institutions
Kompetenz Kompetenz
Article 553 NCPC
The conclusion of the arbitration agreement excludes the
jurisdiction of the courts over the resolution of the disputes to which
it refers.
Article 579 (1) NCPC
On the first hearing date with the legal procedure completed, the
tribunal shall examine its own jurisdiction to resolve the dispute.
International arbitration
Article 1119 NCPC. Jurisdiction of the tribunal
(1)
International arbitration
Article 1069 NCPC. Arbitration exception
If the parties concluded an arbitration agreement related to a dispute which
is arbitrable under Romanian law, the Romanian court seized [with the
dispute] shall decline its jurisdiction except for cases where:
a) The defendant did not invoke the arbitration exception by the date when
it was legally notified to appear;
b) The competent court finds that the arbitration agreement is void or
inoperative;
c) The arbitral tribunal cannot be constituted or the sole arbitrator cannot be
appointed for reasons manifestly imputable to the defendant.
Private order
In limine litis
PROCEEDINGS
SEIZING THE ARBITRAL
TRIBUNAL
REQUEST FOR ARBITRATION
Article 571 (1) NCPC:
The arbitral tribunal is seized by the claimant through a written request, which shall include:
a) Coordinates of the parties;
b) The name and capacity of the person representing the party, if applicable, together with the power
of attorney;
c) A reference to the arbitration agreement, together with a copy of the contract that contains it, or a
copy of the arbitration agreement if it was concluded separately or in the form of a submission
agreement;
d) The subject matter and the amount of the claim, as well as the method by which the amount was
determined;
e) The factual and legal grounds as well as the supporting evidence;
f) The name and domicile of the members of the arbitral tribunal; and
g) The signature of the party.
CONDUCT OF THE
PROCEEDINGS
FUNDAMENTAL PRINCIPLES:
Procedural equality
Defense (including disclosure)
The right to dispose
Contradictoriality Right to be heard
Oral proceedings (right of audience)
CONFIDENTIALITY
RULES OF ARBITRATION
Article 576 NCPC. Applicable rules of procedure
(1)
In their arbitration agreement, the parties may determine the procedural rules
applicable to the arbitration or may authorize the arbitral tribunal to determine these
rules. These rules shall be complemented, where relevant, with the provisions of the
present Book.
(2) When the parties choose institutional arbitration, the provisions of Article 619(3)
shall apply.
(3) In all other cases, the arbitral procedure shall be determined by the present Book.
AD HOC ARBITRATION
1. Arbitration agreement
2. Arbitral Tribunal
3. Book no. IV
INSTITUTIONAL ARBITRATION
Article 617 (2) NCPC:
In case of disagreement between the arbitration agreement
and the rules of the arbitral institution referenced in that
agreement, the arbitration agreement prevails.
Article 619 NCPC:
Rules of arbitration
Time limit
Article 567. Time limit for the arbitration
(1)
If the parties have not provided otherwise, the arbitral tribunal must render the
award not later than 6 months from its constitution, under the sanction of lapse of the
arbitration
(2) The time limit shall be suspended pending a challenge or any other ancillary request
to the court specified in Article 547.
(3) Within the time limit specified in paragraph (1), the parties may agree in writing to
extend the time limit for the arbitration.
(4) The arbitral tribunal can decide, for a justifiable reason, to extend the time limit for the
arbitration once, for no more than 3 months.
(5) The time limit for the arbitration shall be automatically extended by 3 months upon
the death of one of the parties.
International arbitration: double
INTERIM MEASURES
Article 585 NCPC. Conservatory and provisional measures
(1)
Before or during the arbitration, any party may address the court specified
in Article 547 to issue conservatory and provisional measures related to the
subject matter of the dispute or to acknowledge certain factual circumstances.
(2) This request shall be accompanied by copies of the request for arbitration, or in
the absence thereof, by the proof of communication specified in Article 558(2), as
well as the arbitration agreement.
(3) The party requesting such measures shall inform the tribunal of their approval.
(4) During the proceedings, the arbitral tribunal may also issue conservatory and
provisional measures, and it may acknowledge certain factual circumstances. If the
parties refuse to comply, the court shall order enforcement of these measures,
pursuant to paragraph (1).
Subject:
Conservatory and provisional measures + acknowledge
factual circumstances
Documents required:
Arbitral claim/communication related to the constitution
of the arbitral tribunal + arbitration agreement
When:
Before or during the arbitration
Jurisdiction:
Before - national tribunal
During - national tribunal / arbitral tribunal BUT if the parties
refuse to comply court enforcement
NO REGULATION FOR EMERGENCY ARBITRATOR
The minutes of the arbitral tribunal - action for annulment within
5 days from the communication of the challenged order
The decision of the court of appeal - final
International arbitration
Article 1117 NCPC:
(1) The arbitral tribunal may grant provisional or conservatory
measures of either party, if the arbitration agreement does not provide
otherwise.
(2) If the party concerned does not voluntarily comply with the
measures ordered, the arbitral tribunal may request assistance from the
competent court (tribunalul competent), which shall apply its own law.
The arbitrator or the judge may condition the granting of a provisional
or a conservatory measure on the provision of adequate security.
PLACE
Article 569 NCPC:
The parties shall determine the place of the arbitration. Absent such
provision, the arbitral tribunal shall fix the place of the arbitration.
Abstract concept decided by the parties
NOT THE HEADQUARTERS OF THE ARBITRAL INSTITUTION
CCIR the place of the arbitration is at the headquarters of the Court of
Arbitration in Bucharest
LANGUAGE
Article 570 NCPC. Language of arbitration
(1) The proceedings before the arbitral tribunal shall take place in the
language specified in the arbitration agreement or, if the arbitration agreement
is silent or no subsequent agreement has been reached, in the language of the
contract in relation to which the dispute arose, or, if the parties do not agree, in
a language of international usage fixed by the arbitral tribunal.
(2)If a party does not know the language of the proceedings, the tribunal shall
ensure the services of a translator, at the request of that party and at its
expense.
(3)
LANGUAGE
Arbitration agreement
Contract
Arbitral tribunal language of international usage
FIRST HEARING
Article 578 NCPC. Examination of the file
(1)
Upon the expiry of the time limit in which the statement of defense must be
filed, the arbitral tribunal shall examine whether the dispute is ripe for hearings and,
if it considers it necessary, it shall order the necessary measures for completing the
file.
After this examination or, where relevant, after the completion of the file, the
arbitral tribunal shall fix the hearing date and shall notify the parties.
Article 580 NCPC. Term for notification
Between the receipt of the first notice and the hearing date there must be an
interval of at least 15 days.
Meanings:
Enumerate connotations (last chance to: -, -, -.)
HEARINGS
Participation
Article 582 NCPC. Absence of a party
The absence of a party that was legally notified shall not impede the
proceedings, unless the absent party requests, at least 3 days before the hearing
date, a postponement on serious grounds and notifies the other party and the
arbitrators of this request within the same time limit. The arbitral tribunal shall
have exclusive competence to determine whether the grounds for a partys
absence are well-founded and whether they justify the postponement of the
hearing, its decision being final.
Article 583 NCPC. Requesting resolution of the dispute in absentia
Any party may request in writing that the dispute be resolved in its absence,
based on the evidence submitted in the case. The provisions of Article 580 shall
apply accordingly.
EVIDENCES
Article 586 NCPC. Burden of proof
(1) Each party bears the burden of proving the facts
supporting its claim or defense in the dispute.
(2) In order to resolve the dispute, the arbitral tribunal
may solicit written explanations from the parties related
to the subject matter of the request [for arbitration] and
the facts of the dispute, and it may order the submission
of any type of evidence provided by law.
PROPOSAL
When:
Article 587 (1) NCPC:
The evidence that was not sought in the request for arbitration
or statement of defense cannot be requested during the
proceedings, except for the cases provided for in Article 254(2).
Calendar:
Article 587 (2) NCPC:
The arbitral tribunal shall have exclusive competence to
determine the materiality, relevance and weight of the evidence
proposed by the parties. After consulting with the parties, the
arbitral tribunal may fix deadlines for the submission of the
approved evidence (probe ncuviintate). Upon the expiry of
these deadlines, the submission of evidence cannot take place
unless the tribunal considers that this is essential for the
appropriate resolution of the dispute.
Sanction: WAIVER
SUBMISSION:
Article 588 NCPC. Submission of evidence
(1) The submission of evidence is made during the
hearings. The tribunal may order that the submission of
evidence be made before the presiding arbitrator [alone] or,
with the agreement of the parties, before [any] member of
the arbitral tribunal.
(2) The arbitral tribunal may order the production of any
evidence held by one of the parties.
DOCUMENTS
Article 592 (2) NCPC:
Any applications and documents shall be submitted not later than the first
date to which the parties were legally notified to appear. The provisions of
Article 587 shall apply accordingly.
Article 590 NCPC. Information held by public authorities
(1)
The arbitral tribunal may request written information from the public
authorities about their actions that are necessary for the resolution of the
dispute.
(2) If the public authority refuses to provide such information, although the
requirements set forth in Article 298(2) are not met, the parties or the
arbitrators may address the court specified in Article 547, which will order the
measures specified in Article 298(1).
International Arbitration:
Article 1118 NCPC. Administration of evidence
(1)
(2) If the court support is necessary for the administration of evidence, the arbitral
tribunal or the parties with the arbitral tribunals concurrence may request assistance
from the court (tribunalul) at the place of arbitration, which shall apply its own law.
Article 591 NCPC. Evaluation of evidence
The arbitrators shall evaluate the evidence pursuant to their personal conviction.
SANCTION FOR THE ABSENCE OF EVIDENCES:
The claim is rejected as NOT GROUNDED (res judicata!)
OBJECTIONS
pleas)
(procedural
SUSPENSION OF THE
PROCEEDINGS &
SUPERANNUATION
- The proceedings can be suspended the arbitration
will continue after the cause ceases
The minutes can be challenged as long as the
suspension lasts action for annulment + common law
provisions!
- The proceedings can lapse (become out of date) 6
months after the last procedural act
COSTS
- Organization and administration of the proceedings
- Arbitrators fees
- Expenses (evidences, travel expenses etc.)
Arbitration agreement
In the absence the losing party
What happens when the arbitral award is annulled and the court
of appeal remands the dispute to the arbitral tribunal?
International arbitration
Article 1122 NCPC
Unless the parties otherwise provide, the arbitrators fees and
travel expenses are borne by the appointing party.
Sole arbitrator / President the parties shall bear the expenses
in equal shares
Elements:
The hearing record shall include:
a) Name of the arbitrators, place & date;
b) Coordinates of the parties & participants;
c) A brief description of the session;
d) The applications and submissions of the parties;
e) The grounds underlying the orders [of the arbitral tribunal];
f)
g) The signatures of the arbitrators; The dissenting arbitrator shall draft and
sign the separate/concurring opinion.
Interpretation, amendment
and correction
Article 604. Interpretation, amendment and correction of the
award
Interpretation
Where clarifications are necessary regarding the meaning,
scope or application of the dispositive part of the award or the
award contains contradictory provisions, any party may ask the
arbitral tribunal to interpret the dispositive part of the award or
to remove the contradictory provisions.
Amendment
If the arbitral tribunal failed to deal with a main claim, [or] an
ancillary or an incidental claim in the arbitral award, any party
may request an amendment of the award.
The request to interpret or amend the award must be submitted
within 10 days from the receipt of the award and shall be
resolved by the arbitral tribunal, after notifying the parties, in
a separate award.
Correction
Material errors in the arbitral award or other manifest errors
that do not alter the result or the merits, as well as calculation
errors, may be corrected by an order (ncheiere), upon the
request of either party that is submitted within the time limit of
10 days, or by the tribunal on its own motion. The parties will
be notified if the tribunal considers it necessary.
Effects
Divesting the arbitral tribunal
Artcile 606 NCPC: The arbitral award communicated to the parties is final
and binding.
Res judicata
Enforceable character
Evidentiary character
f) The arbitral tribunal dealt with matters not requested by the parties or
awarded more than it was requested; PLUS/EXTRA PETITA
g) The arbitral award does not contain the dispositive part and the
reasoning, does not indicate the date and place of issuance, or is not
signed by the arbitrators;
h) The arbitral award infringes public order, good morals or the mandatory
provisions of the law;
i) If, after the award is made, the Constitutional Court decides on an
objection raised in that case, declaring unconstitutional a law, a
government ordinance or a provision of law or an ordinance that was the
subject of that objection, or other provisions from the challenged
legislation which, necessarily and clearly, cannot be dissociated from the
provisions mentioned in the action for annulment.
Public order
Absence or nullity of the arbitration agreement or disregard to the parties
consent
Disrespect of the procedural rules
NO:
- the discontentment of the parties related to the solution the annulment
claim does not involve a re-examination of the decision on the merits
-
PROCEEDINGS
Article 613 NCPC. Resolution of the action for annulment
When deciding the action for annulment, the court of appeal
shall sit in panels as provided by law for deciding cases in first
instance proceedings. 1 JUDGE
The statement of defense shall be mandatory.
Evidences
ONLY documents
Suspension
Article 612 NCPC: The court of appeal can suspend the
execution of the arbitral award against which an action for
annulment was filed.
Security maximum 10% (see Article 718 NCPC)
Parties are summoned
Hearing within 10 days, decision 48 hours; final decision
For grounded reasons, the court of appeal can revoke the
suspension
SETTLEMENT
Reject, annul or admit the claim
On finding the action for annulment admissible, the
court of appeal shall annul the arbitral award and
shall:
a) Dispute not arbitrable, no arbitration agreement, lapse of
arbitration - send the dispute for resolution to the competent
court;
International arbitration
Article 1121 NCPC. Award
(1)
The arbitral award shall be made in accordance with the procedure agreed by
the parties. In the absence of any such provision in the arbitration agreement, the
arbitral award shall be made by a majority of votes, and in case there is no majority
the decision of the presiding arbitrator shall prevail.
(2) The arbitral award shall be in writing, shall state the reasons, and shall be dated
and signed by all the arbitrators.
(3) The arbitral award shall be final and binding upon communication to the parties
and may be challenged only through an action for annulment on the grounds and
under the conditions set forth in Book IV, which shall apply accordingly.
(4) The arbitral tribunal may render partial awards, unless the arbitration agreement
provides otherwise.
ENFORCEMENT OF THE
ARBITRAL AWARD
Article 614 NCPC. Voluntary enforcement
The party against whom the award was rendered shall
voluntarily carry out the award without delay or within the time
limit specified therein.
No subpoena
RECOGNITION AND
ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
d) The constitution of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, or, absent such agreement, was
not in accordance with the law of the place where the arbitration took place;
e) The arbitral award deals with a difference not contemplated by or not falling
within the terms of the arbitration agreement, or it contains decisions on matters
beyond the scope of the arbitration agreement. If, however, the decisions
contained in the arbitral award that concern matters submitted to arbitration can
be separated from those not so submitted, the former may be recognized and
enforced; or
f) The arbitral award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country in which, or under the
law of which, that award was made.
Thank you!