Commercial arbitration in Romania, July 2019

Infrastructure

1. The New York Convention – Are there any noteworthy declarations or reservations?
2. Other treaties – Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
3. National law – Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
4. Arbitration bodies in your jurisdiction – What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
5. Foreign institutions – Can foreign arbitral providers operate in your jurisdiction?
6. Courts – Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Agreement to arbitrate

7. Formalities – What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
8. Arbitrability – Are any types of dispute non-arbitrable? If so, which?
9. Third parties – Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
10. Consolidation – Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
11. Groups of companies – Is the “group of companies doctrine” recognised in your jurisdiction?
12. Separability – Are arbitration clauses considered separable from the main contract?
13. Competence – competence – Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
14. Drafting – Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
15. Institutional arbitration – Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
16. Multi-party agreements – What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

Commencing the arbitration

17. Request for arbitration – How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

Choice of law

18. Choice of law – How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Appointing the tribunal

19. Choice of arbitrators – Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
20. Foreign arbitrators – Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
21. Default appointment of arbitrators – How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
22. Immunity – Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
23. Securing payment of fees – Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Challenges to arbitrators

24. Grounds of challenge – On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

Interim relief

25. Types of relief – What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?
26. Security for costs – Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

Procedure

27. Procedural rules – Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and / or the parties)?
28. Refusal to participate – What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
29. Admissible evidence – What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?
30. Court assistance – Will the courts in your jurisdiction play any role in the obtaining of evidence?
31. Document production – What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
32. Hearings – Is it mandatory to have a final hearing on the merits?
33. Seat or place of arbitration – If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Award

34. Majority decisions – Can the tribunal decide by majority?
35. Limitations to awards and relief – Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
36. Dissenting arbitrators – Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
37. Formalities – What, if any, are the legal and formal requirements for a valid and enforceable award?
38. Time frames – What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

Costs and interest

39. Costs – Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?
40. Interest on the award – Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Challenging awards

41. Grounds for appeal – Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
42. Other grounds for challenge – Are there any other bases on which an award may be challenged, and if so what?
43. Modifying an award – Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Enforcement in your jurisdiction

44. Enforcement of set-aside awards – Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
45. Trends – What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
46. State immunity – To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Further considerations

47. Confidentiality – To what extent are arbitral proceedings in your jurisdiction confidential?
48. Evidence and pleadings – What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
49. Ethical codes – What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
50. Procedural expectations – Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
51. Third-party funding – Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?