ROMANIA Law and Practice Contributed by: Cosmin Vasile and Violeta Saranciuc, Zamfirescu Racoți Vasile & Partners
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 - Romanian law does not define the standard of judicial review for jurisdiction/admissibility. It also does not 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. dictional objections in partial awards. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
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. Jurisdiction 5.1 Challenges to Jurisdiction
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