ROMANIA Law and Practice Contributed by: Cosmin Vasile, Alina Tugearu and Violeta Saranciuc, Zamfirescu Racoți Vasile & Partners Attorneys At Law
arbitral tribunal will be dealt with in accordance with the general default procedure, as described in the foregoing. Many arbitration rules have specific provisions on how arbitrators are appointed in multiparty arbitrations. The usual approach in arbitration rules in case of a three-member tribunal is that the side of the claim - ant and the side of the respondent shall each jointly nominate an arbitrator (Article 10 (1) of the UNCITRAL Rules, Article 19 (4) of the CICA Rules, Article 12 (6) of the ICC Rules, Article 18 (2) of the VIAC Rules). In case of the parties’ failure to constitute the arbitral tribunal in a multiparty arbitration, the approach varies from obligatory appointment of all of the arbitrators by the arbitral institution in some arbitration rules (Arti - cle 19 (4) CICA Rules) to a more nuanced approach where the institution appoints only the arbitrator for the defaulting party/parties, but exceptionally can appoint co-arbitrators or all the arbitrators (Article 18 (4) VIAC Rules). 4.3 Court Intervention The Code of Civil Procedure provides that a local court, namely the tribunal whose jurisdiction covers the seat of arbitration, may intervene in the selection of arbitrators by appointing an arbitrator or the presid - ing arbitrator only in cases where (i) the parties do not agree on the appointment of the sole arbitrator; (ii) a party fails to nominate an arbitrator; or (iii) in the case of a three-panel arbitral tribunal, the two arbitrators do not agree on whom they should appoint as presiding arbitrator. The local courts render a decision regard - ing the appointment of the arbitrators after hearing the parties. 4.4 Challenge and Removal of Arbitrators According to the Code of Civil Procedure, the parties may agree on a procedure for challenging the appoint - ment of, and replacing, the arbitrator by means of the arbitration agreement, including at a time subsequent to that agreement being made. In the absence of an agreement, the parties may ask the local court, name - ly the tribunal whose jurisdiction covers the seat of arbitration, to rule on the challenge and removal of arbitrators.
Pursuant to the Code of Civil Procedure, the arbitrator may be challenged on the following grounds: • the arbitrator does not meet the qualifications pro - vided in the arbitration agreement; • a reason for the challenge is provided for in the rules of arbitral procedure agreed on by the parties or, in the absence of an agreement, by the arbitra - tors; or • the circumstances cast legitimate doubt regarding the arbitrator’s independence and impartiality. A party may challenge an arbitrator who it has appoint - ed only after the appointment. Otherwise (for example, if the arbitration agreement provides for institutional arbitration), the rules of the arbitral institution will gov - ern the whole procedure and – in the majority of cases – will cover any issues related to the challenge and replacement of arbitrators. The CICA Rules provide specific grounds for chal - lenge in cases of incompatibility, namely where the arbitrator finds himself or herself in one of the follow - ing situations of incompatibility provided for judges in the Code of Civil Procedure: (i) the arbitrator previous - ly expressed his or her opinion regarding the solution in the dispute he or she was appointed to settle; (ii) there are circumstances that justify doubting that he or she, their spouse, ancestors or descendants does not have a benefit related to the dispute; or (iii) his or her spouse or previous spouse is a relative (maximum fourth-degree) of one of the parties, etc. One the following reasons casting doubt on the arbi - trator’s independence and impartiality can also be grounds for a challenge: • the arbitrator does not meet the qualifications or other requirements regarding arbitrators provided in the arbitration agreement; • the arbitrator is a partner of, has a co-operative relationship with or is a member of the manage - ment bodies of an entity without legal personality, or of a legal person that has an interest in the case, is controlled by one of the parties or is under joint control together with this party; • the arbitrator has employment or work relations with one of the parties, or with a legal person
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