ROMANIA Law and Practice Contributed by: Cosmin Vasile, Alina Tugearu and Violeta Saranciuc, Zamfirescu Racoți Vasile & Partners Attorneys At Law
provide for the concepts of deferential or de novo as standards of review. In matters of jurisdiction, courts most often will proceed to a de novo review. 5.5 Breach of Arbitration Agreement A state court vested with a dispute in respect of which an arbitration agreement has been concluded will check its own competence and declare that it lacks competence if at least one of the parties invokes the existence of the arbitration clause. In the case of a domestic arbitration, the court will defer its jurisdiction to the arbitral institution mentioned in the arbitration agreement or will reject the claim as not being under the Romanian courts’ competence in the case of ad hoc arbitration. With regard to an international arbitra - tion, the court will admit the lack of competence plea and reject the claim as not being under the Romanian courts’ competence. The court will retain its jurisdiction in settling the dis - pute only in three exceptional situations, namely: • if the respondent has submitted its defence without invoking the existence of the arbitration agreement; • if the arbitration clause is null or inoperable; or • if the arbitral tribunal cannot be constituted from causes clearly attributable to the defendant in the arbitration. If none of the three exceptions are applicable, the court will admit the lack of competence plea. 5.6 Jurisdiction Over Third Parties As a rule, Romanian law does not allow an arbitral tribunal to assume jurisdiction over individuals or enti - ties that are not part of an arbitration agreement. However, since the entering into force of the Code of Civil Procedure in 2013, a provision was introduced stating that third parties may take part in arbitral pro - ceedings following the general civil procedure rules on this aspect, but only if such third party and all the par - ties agree. Only an accessory joinder claim – meaning that a third party bearing an interest voluntarily joins an ongoing procedure to support one of the parties’ positions – is admissible, even in the absence of the consent of all the other parties. However, depending on the applicable arbitration rules, this possibility may
be limited. For example, according to the new CICA Rules, even the accessory joinder claim is admissible only if all the parties agree. Matters such as the extension of the arbitration clause to non-signatories – following direct involvement in the negotiation and/or performance and/or termina - tion of a contract containing an arbitration clause, the “group of companies” doctrine or other issues of debate in international arbitration regarding the ambit of the arbitration agreement – are subject to debate according to case law but are not addressed in any way by Romanian law. The arbitration law does not distinguish between for - eign and domestic third parties. Thus, the provisions are applicable to both of them. During the arbitration proceedings, the arbitral tribunal may grant, at the parties’ request, protective (conserv - atory) measures and interim relief, as well as acknowl - edge matters of fact, unless the contrary is stipulated in the arbitration agreement. This provision is similar both in the Code of Civil Procedure and in the rules of the main Romanian arbitral institution (CICA) – how - ever, neither defines, except for protective measures, what types of relief can be awarded on a provisional basis. Despite this, and taking into account the gen - eral civil procedure rules as an interim remedy, the interested party may apply for freezing measures on goods, provisional measures or conservatory meas - ures regarding evidence (ie, acknowledgement of mat - ters of fact). The CICA Rules provide for the possibility of the arbi - tral tribunal bifurcating the proceedings and render - ing partial awards as case management techniques aimed at increasing the efficiency of the proceedings, by reducing the duration and costs of the arbitration. The protective measures and interim reliefs are merely recommended for the parties, as the decision issued by the arbitral tribunal is not directly enforceable under Romanian law. However, according to Article 1117 of 6. Preliminary and Interim Relief 6.1 Types of Relief
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