ROMANIA Law and Practice Contributed by: Cosmin Vasile, Alina Tugearu and Violeta Saranciuc, Zamfirescu Racoți Vasile & Partners Attorneys At Law
• it deals with rights the parties may freely dispose of (this excludes disputes over personal civil status and legal capacity, inheritance and family matters, and labour law disputes); and • it falls outside the exclusive jurisdiction of the courts pursuant to the law of the seat of arbitration. Under these circumstances, exempt from arbitration are any disputes that are not of a patrimonial nature, such as civil status litigations, litigations in respect of capacity, inheritance litigations and family litiga - tions, as well as litigations regarding rights that the parties cannot dispose of (eg, in matters of labour and employment litigation where the law expressly provides that a party cannot waive the legal rights established in their favour). While the procedural rules regulating domestic pro - ceedings may still occasionally raise questions regard - ing the capacity of public and state-owned bodies to conclude arbitration agreements, no such limitations are imposed in respect of international arbitration. Thus, international arbitration parties may not seek to evade arbitration to which they have previously agreed by invoking internal law provisions that pur - port to prohibit entering into arbitration agreements. 3.3 National Courts’ Approach National courts in Romania recognise arbitration agreements and their effects. As far as is known, there are no cases of anti-arbitration injunctions or any other similar form of court denial of arbitration agreements. Provided that the arbitration agreement meets the legal requirements of validity and the dispute is arbi - trable, the national courts respect the will of the par - ties and proclaim that the agreement has the force of law among them. The national courts usually determine the law govern - ing the arbitration agreement in case they are vested with a dispute in respect of which an arbitration agree - ment has been concluded and at least one of the par - ties invokes the existence of the arbitration clause. If the arbitration clause is valid, the national courts defer jurisdiction to a national arbitral institution or reject the claim as not being in scope of the Romanian state
courts’ competence (versus an international institu - tion). If the arbitration clause is null or inoperable, the national courts will retain jurisdiction. To determine the validity of the arbitration clause, the courts need to determine the law governing the arbitration agree - ment, which is the law chosen by the parties. In the absence of the parties’ agreement in this respect, the courts will apply the provisions of international pri - vate law, depending on the object of the agreement, in order to determine the applicable law. 3.4 Validity The Code of Civil Procedure expressly provides for the separability of arbitration agreements, to the effect that the validity of the arbitration clause is independ - ent from the validity of the contract containing it. Party autonomy to select arbitrators is recognised and well established in Romania. The parties are free to agree whether disputes should be submitted to a sole arbitrator or an arbitral tribunal, and also to select the arbitrators. The Code of Civil Procedure provides for the nullity of an arbitration clause, which allows one of the parties privileged participation in the nomination of the arbitrator(s) or provides a party’s right over the other party to nominate the arbitrator(s), or to have more arbitrators than the other party. 4.2 Default Procedures 4. The Arbitral Tribunal 4.1 Limits on Selection If the parties’ chosen method for selecting arbitrators fails, institutional or ad hoc arbitration rules usually provide default procedures for appointing arbitrators. If the parties have not opted for a set of arbitration rules to govern their arbitration and they are unable to agree on the appointment of arbitrators, the Code of Civil Procedure provides that the interested party/ parties may request the local courts to appoint the sole arbitrator, the arbitrator for a defaulting party or the presiding arbitrator. There are no default provisions on selecting arbitrators in multiparty arbitrations in the Code of Civil Proce - dure. Therefore, where the parties have not chosen a set of arbitration rules, their failure to constitute the
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