ROMANIA Law and Practice Contributed by: Cosmin Vasile and Alina Tugearu, Zamfirescu Racoți Vasile & Partners Attorneys At Law
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The main body of law governing arbitration is included in the Code of Civil Procedure, which came into force on 15 February 2013. In addi- tion to regulating national arbitration, Book IV of the Code of Civil Procedure (On Arbitration) also contains the general set of provisions applicable to international arbitration whenever the parties have not agreed upon certain aspects in the arbitration agreement and have not empowered the arbitral tribunal to settle those aspects either, whereas Title IV of Book VII provides specific legal provisions governing international arbitra- tion and foreign arbitral awards. The arbitration law includes mostly non-manda- tory provisions, as a reflection of the principle provided in the Code of Civil Procedure that par- ties are free to organise arbitral proceedings as they deem fit. However, parties’ freedom is sub- ject to the observing of public policy, a couple of mandatory provisions and ethics. There are a few mandatory rules (eg, certain validity require- ments for the arbitration agreement) regarding the written form of the arbitration agreement or the authenticated form of the arbitration agree- ment in arbitrations regarding the transfer of the ownership right over an immovable asset. The law also imposes certain fundamental principles related to a fair trial, from which no derogation is permitted (eg, the parties shall be given equal treatment, the right to a defence and a reason- able opportunity to present their case). Romania ratified the New York Convention in 1961 by means of Decree No 186/1961, which came into force on 24 July 1961. Romania reserved the right to apply the convention only to:
• the recognition and enforcement of awards made in the territory of another contracting state or, for awards made in non-contracting states, only subject to reciprocity (ie, namely to the extent to which those states grant reciprocal treatment); and • disputes arising from legal relationships – whether contractual or not – that are consid- ered commercial under the national law. As the new Civil Code, which came into force in October 2011, repealed the former Commer- cial Code of Romania of 1887, in the absence of a specific body of law regulating commercial relationships, the concept should be construed broadly in the context of international arbitration as encompassing relationships that are com- mercial in nature (whether contractual or not). 13.2 Subject Matters Not Referred to Arbitration As a matter of principle, all disputes are arbitra- ble, unless there is a legal provision that states otherwise. As far as national arbitration is concerned, the following matters are exempt from arbitration: • civil status litigation; • litigation with respect to the legal capacity of persons; • inheritance litigation; • matters arising out of, or in connection with, family relations; and • litigation regarding rights that the parties can- not dispose of (eg, in labour and employment law matters where the law expressly provides that a party cannot waive the legal rights established in their favour).
1200 CHAMBERS.COM
Powered by FlippingBook