ROMANIA Law and Practice Contributed by: Cosmin Vasile and Violeta Saranciuc, Zamfirescu Racoți Vasile & Partners
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, an 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 whom it has appointed only after the appointment. Otherwise (for example, if the arbitration agreement provides for
institutional arbitration), the rules of the arbitral insti - tution will govern 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 previ - ously expressed his or her opinion regarding the solu - tion in the dispute he or she was appointed to settle; (ii) there are circumstances that justify doubting that he or she, or his or her spouse, ancestor or descend - ant, 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 of the following reasons casting doubt on the arbitrator’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 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, arbitrators are 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
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