ROMANIA Law and Practice Contributed by: Cosmin Vasile, Alina Tugearu and Violeta Saranciuc, Zamfirescu Racoți Vasile & Partners Attorneys At Law
5. Jurisdiction 5.1 Challenges to Jurisdiction
controlled by one of the parties, or is under joint control together with this party; or • the arbitrator provided advisory services to – or assisted or represented – one of the parties, or testified in the preliminary stages of the dispute. 4.5 Arbitrator Requirements Under the Code of Civil Procedure, the arbitrator is required to be independent and impartial, and to dis - close any conflicts of interest. Most of the arbitration rules, including the CICA Rules, provide the same. According to the Code of Civil Procedure, a person aware of a ground for challenging himself or herself is bound to inform the parties and the other arbitrators before accepting the office of arbitrator or – should such grounds occur after his or her acceptance of the office – as soon as he or she has knowledge of them. In this case, the arbitrator may not participate in the arbitral proceedings unless the parties, apprised thereof, notify the arbitral tribunal in writing that they do not intend to challenge the arbitrator. Even in this case, the arbitrator has the right to refrain from adju - dicating the dispute. In a similar manner, according to the CICA Rules, with - in five days from the date when the appointment pro - posal was communicated to him or her, the arbitrator shall fill in and sign the statement of acceptance, inde - pendence, impartiality and availability, where he or she shall indicate any circumstances that may give rise to justifiable doubts with respect to his or her impartial - ity or independence. An arbitrator shall immediately inform the parties and the other arbitrators in writing if any circumstances that may give rise to justifiable doubts as to his or her impartiality or independence arise during the course of the arbitration. In common with other jurisdictions, Romanian law does not explicitly define these concepts but merely provides for the general principle, with the case law being left to consider these matters on a case-by- case basis.
The principle of competence-competence is fully recognised under Romanian arbitration law. Once a dispute has been referred to arbitration, the arbitral tribunal is competent to decide on its own jurisdiction, and will do so even if identical disputes are pending before the courts or other arbitral tribunals – except if the arbitral tribunal finds it appropriate to suspend the proceedings. Further, according to the default provisions, the arbitral tribunal’s ruling confirming jurisdiction may not be challenged before the courts during the arbitral proceedings, but only by means of an action to set aside the arbitral award. The arbitral tribunal’s negative ruling on jurisdiction is not subject to review by the courts. 5.2 Circumstances for Court Intervention A state court vested with a dispute in respect of which an arbitration agreement has been concluded will check its own competence; if at least one of the parties invokes the existence of the arbitration agree - ment, it will decline jurisdiction. The state courts will also adjudicate actions to set aside an arbitral award brought on grounds of lack of jurisdiction of the arbitral tribunal. 5.3 Timing of Challenge According to the default provisions, the arbitral tri - bunal’s ruling that it has jurisdiction may not be chal - lenged before the courts during the arbitral proceed - ings. Such decision may be subject to judicial review by state courts only by means of an action to set aside the arbitral award. Therefore, arbitration law provides no procedural grounds allowing a party to ask the local courts, during the arbitral proceedings, to determine whether an arbitral tribunal has jurisdic - tion. However, there is case law from courts reviewing partial awards on jurisdiction issued under institutional rules that allows arbitral tribunals to dispose of juris -
dictional objections in partial awards. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
Romanian law does not define the standard of judicial review for jurisdiction/admissibility. It also does not
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