Rules of Arbitration 1)
Chapter I
General Provisions
Art. 1.– (1) These Rules of Arbitration (RA-CAB) shall apply to commercial arbitration organised by the Chamber of Commerce and Industry of Romania .
(2) The arbitration shall be organised by the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania , hereinafter called the Court of Arbitration, in accordance with its Regulations of Organisation and Operation and these Rules, drawn up in compliance with the provisions of the Code of Civil Procedure – Book IV, “On Arbitration” (Articles 340 to 3703).
Art. 2.– (1) The Court of Arbitration shall organise the settlement of domestic or international commercial disputes by arbitration, where parties concluded a written arbitral agreement in this respect.
(2) For the purpose of these Rules, a commercial dispute is any dispute deriving from a commercial agreement, including disputes referring to the conclusion, execution or termination of such agreement as well as disputes resulting from other legal commercial relations.
(3) A commercial dispute is domestic if deriving from a domestic agreement or other domestic legal commercial relations and is international if deriving from an international agreement or other international legal commercial relations.
Art. 3.– Persons with full capacity of exercise of their rights may agree to settle by arbitration their patrimonial disputes, except for the disputes implying rights upon which the law allows no transaction.
Art. 4.– (1) The arbitration may, by arbitral agreement, be entrusted to one or several persons, invested by the parties or in accordance with such agreement to settle a dispute and to deliver a final and binding award for the parties. For the purpose of these Rules, the sole arbitrator or, as the case may be, all invested arbitrators, shall constitute the Arbitral Tribunal.
(2) The settlement of the dispute shall be the exclusive power of the Arbitral Tribunal.
Art. 5.– Where the Court of Arbitration is entrusted with the organisation of an arbitration, the parties agree ipso facto to these Rules, unless, upon requesting the organisation of the arbitration, the parties have already agreed, in writing, to other arbitration rules and the same have been accepted by the Arbitral Tribunal.
Art. 6.– Throughout the arbitral proceedings the parties shall be ensured equal treatment, the right to defence, and a reasonable opportunity to present its case, under the sanction of nullity of the arbitral award.
Art. 7.– (1) The Court of Arbitration, the Arbitral Tribunal as well as the staff of the Chamber of Commerce and Industry of Romania shall be bound to ensure confidentiality of arbitration, refraining from publishing or disclosing, without the consent of the parties, the data they come to have knowledge of while fulfilling their duties.
(2) The file of the dispute shall be confidential. No person, with the exception of those directly involved in the resolution of that particular dispute, shall have access to the file without the written agreement of the parties.
Art. 8.– (1) The arbitral awards may be published in their entirety only upon the parties’ agreement. However they may be published in part, or summarized, or commented with respect to the legal issues that had arisen in journals, arbitral practice books or compilations, without mention of the name or denomination of the parties, or of data that may be prejudicial to their interests.
(2) The President of the Court of Arbitration may authorise, case by case, the study of the files for scientific or documentation purposes, after the settlement of the disputes, and only if in those disputes irrevocable court decisions have been rendered.
Art. 9.– (1) The parties shall be bound to exercise their procedural rights bona fide and in accordance with the purpose they are granted. They shall co-operate with the Arbitral Tribunal for the appropriate progress of the arbitral proceedings and the settlement of the dispute in due time.
(2) Any obstruction or undue delay of the dispute shall be considered a breach of the arbitral agreement.
(3) At any stage of the
dispute, the Arbitral Tribunal shall attempt settlement upon the parties’ agreement.
Chapter II
The Arbitral Agreement
Art. 10.– (1) The arbitral agreement shall be concluded in writing under the sanction of nullity.
(2) The same may also be concluded either under the form of an arbitration clause, stipulated in the main contract, or of a separate agreement called compromise.
Art. 11.– (1) Under the arbitration clause, the parties agree that disputes arising from the contract stipulating for it or in connection with the same, shall be settled by arbitration, with mention of the names of the arbitrators or of the modality of their nomination. In the absence of such mention and should the Chamber of Commerce and Industry of Romania , or directly the Court of Arbitration, be entrusted with the organisation of the arbitration, the arbitrators shall be nominated in accordance with these Rules.
(2) The validity of the arbitration clause shall be independent of the validity of the contract it is included in.
Art. 12.– Under the terms of the compromise the parties agree that a dispute arising between them shall be settled by arbitration, while indicating, under the sanction of nullity, the object of the dispute and the names of the arbitrators or the modality of their nomination.
Art. 13.– (1) The arbitral agreement may also originate in the filing by the Claimant of a Request for Arbitration and the agreement by the Respondent that such request be settled by the Court of Arbitration.
Art. 14.– With observance of the provisions of the law and of the international conventions to which Romania is a party, the State and the public authorities are entitled to conclude valid arbitral agreements with respect to commercial disputes.
Art. 15.– (1) The conclusion of an arbitral agreement excludes the jurisdiction of the judicial courts for the dispute making its object.
(2) The Arbitral Tribunal verifies its own authority to settle the dispute and decides thereupon by a resolution which may only be overthrown following a set aside motion against the arbitral award under Art. 69-71 of these Rules.
Art. 16.– (1) The president of the Court of Arbitration may refuse to organise an arbitration, should there be doubts or challenges as to the existence of the arbitral agreement or should the same be prima faciae null and void or ineffective.
(2) However, should the parties or one of them insists on having the arbitration organised, the Court of Arbitration shall proceed to the organisation, and thereafter the Arbitral Tribunal shall rule on the existence or validity of the arbitral agreement.
Chapter III
The Arbitrators. Constitution of the Arbitral Tribunal.
Time and Place of the Arbitration
Art. 17.– (1) Any natural person, who is a Romanian or a foreign citizen, and has full capacity to exercise his/her rights, is held in high esteem and benefits adequate qualification and expertise in the field of commercial law and international economic relations, is eligible for the office of arbitrator.
(2) The arbitrators are enrolled, upon their own consent, on a list which shall include: the full name and, as the case may be, the qualification, the titles and degrees or a brief presentation of each arbitrator’s professional work.
(3) The parties are free, under the arbitral agreement, to appoint as arbitrators other persons too, who are not enlisted and who, due to their skills and uprightness, enjoy their trust.
(31) The arbitrator who is also an attorney-at-law, listed on the panel of compatible attorneys-at-law, may not be an arbitrator in a dispute on the docket of the Court of Arbitration in respect to which he/she carried out or is going to carry out attorney-specific activities; also, he/she may not represent of assist a party in front of this Court.
(32) The attorney-specific activities specified under paragraph 31 may not be performed by the attorney-at-law who is also an arbitrator, either directly or by replacement by an attorney-at-law from within the form of practising the attorney-at-law profession to which that arbitrator belongs or by another attorney-at law.
Art. 18.– Neither party shall be allowed to appoint an arbitrator on behalf of the other party or to have more arbitrators than the other party.
Art. 19.– (1) The parties shall determine whether the dispute shall be settled by a sole arbitrator or by two or several arbitrators.
(2) Where parties have not determined the number of arbitrators, the dispute shall be settled by three arbitrators, one appointed by each party and the third arbitrator – the presiding arbitrator – appointed by the two arbitrators.
(3) Where there are several claimants or respondents, the parties who have joint interests shall appoint a sole arbitrator. In case of disagreement, the arbitrator shall be appointed by the president of the Court of Arbitration.
Art. 20.– The arbitrators shall be independent and unbiased in fulfilling their duties. They shall not be the representatives of the parties.
Art. 21.– The arbitrators shall be appointed, dismissed or replaced in compliance with the arbitral agreement and these Rules.
Art. 22.– (1) Where the sole arbitrator or, as the case may be, the arbitrators have not been appointed by arbitral agreement, and no stipulation about their appointment has been made, nor the procedure provided under Articles 347 and 348 of the Code of Civil Procedure has been applied, the Arbitral Tribunal shall be made up as follows:
a) in the Request for Arbitration the Claimant shall nominate an arbitrator or shall propose that the dispute be settled by a sole arbitrator, indicating his/her name;
b) in the Answer or in a separate notification, addressed to the Court of Arbitration within no more than 20 days of the receipt of the Request for Arbitration, the Respondent shall appoint an arbitrator indicating his/her name or, as the case may be, shall reply to the Claimant’s proposal concerning settlement of the dispute by a sole arbitrator and with reference to the person of the arbitrator.
(2) The parties are recommended to appoint, apart from an arbitrator, a substitute of the same.
(3) If the appointed arbitrator is not included in the list of arbitrators, the party shall indicate the name, the address and the phone or fax number, and, to the extent possible, the data under Art. 17 (2) for the appointed arbitrator and also for the substitute, if the latter has been designated.
(4) Upon a party’s request, the arbitrator and the deputy shall be appointed by the president of the Court of Arbitration.
Art. 23.– In the case of an Arbitral Tribunal made up of three arbitrators, the two arbitrators appointed in accordance to the provisions under Art. 22, shall select a presiding arbitrator from among the arbitrators enrolled in the list of arbitrators within 10 days of the receipt of the notification by the Court of Arbitration.
Art. 24.– (1) The appointment of an arbitrator or a presiding arbitrator shall be made upon his/her prior written consent obtained by the party designating him/her or, by the two arbitrators in the case of the presiding arbitrator.
(2) Where the appointed arbitrator or presiding arbitrator has been enrolled in the list of arbitrators of the Court of Arbitration, his/her consent shall be obtained by the Secretariat of the Court.
(21) The arbitrator's consent shall also include his/her written statement whereby he/she shall specify, under his/her signature, whether he/she has or has had any relationship with any party, whether there have been or there are any conflict of interest or any facts or circumstances such as to raise doubts as to his/her independence and impartiality. If such relationships, conflict of interest, facts or circumstances arise during the dispute, the arbitrator shall declare them at once. The initial statement and any subsequent statements shall be filed to the case file, so that the parties can learn of their content.
(22) The consent or the non-acceptance to be an arbitrator in a given dispute, shall be communicated, in writing and without providing reasons, to the Secretariat of the Court of Arbitration, within three days of the receipt of the proposal by the arbitrator.
Art. 25.– (1) Should the Respondent fail to answer in due time, or not comply with the request to appoint an arbitrator, or should a disagreement arise between the parties regarding the appointment of the sole arbitrator, or should the two arbitrators not agree on the person of the presiding arbitrator, the president of the Court of Arbitration, after the deadlines provided under Articles 22 and 23, shall appoint the sole arbitrator or, as the case may be, the Respondent’s arbitrator, or the presiding arbitrator, upon their prior consent.
(2) Unless otherwise provided by the arbitral agreement, the appointment of the arbitrator shall be made from among the list of arbitrators of the Court within 5 days of the date the president of the Court of Arbitration has become aware of the circumstances provided under paragraph 1 hereinbefore.
(3) However, should the Respondent, after the appointment of the arbitrator under the provisions of paragraphs 1 and 2 above, appoint his/her arbitrator no later than the date of constitution of the Arbitral Tribunal, the appointment already made shall become null and void.
Art. 26.– (1) An arbitrator may be challenged for reasons calling in question his/her independence and impartiality. The reasons for challenge are those provided by the law for the challenge of judges. Non-compliance with the qualification requirements or with other requirements regarding arbitrators, provided by the arbitral agreement, may also be a reason for challenge.
(2) A party may not challenge its own appointed arbitrator except for reasons supervened, or of which the party has become aware, after appointment.
Art. 27.– (1) A person aware of a challenging reason regarding himself/herself shall be bound to inform the parties and the other arbitrators before accepting the office of arbitrator, or, should such reasons supervene after his/her acceptance of the office as soon as he/she has knowledge of them.
(2) The same may not participate in the arbitral proceedings unless the parties, apprised thereupon in compliance with the paragraph hereinbefore, notify in writing that they do not intend to challenge the arbitrator. Even in this particular case, that person has the right to refrain from the judging the dispute, without such abstention signifying recognition of the challenging reason.
Art. 28.– (1) The challenge shall be made, under the sanction of forfeiture, within 10 days of the date the party has taken knowledge of the appointment of his/her arbitrator or, as the case may be, after the supervention of the reason for challenge.
(2) The challenging petition shall be solved by the Arbitral Tribunal, in the absence of the challenged arbitrator, as he/she shall be replaced by the president of the Court of Arbitration or by an arbitrator appointed by the same.
(3) In case the challenging petition regards the sole arbitrator, it shall be settled by the president of the Court of Arbitration or by an arbitrator appointed by the same.
(4) If the challenging petition is accepted, the arbitrator, the presiding arbitrator or the sole arbitrator shall be appointed as provided by these Rules.
(5) The provisions of Art. 26 – 28, paragraph 1 shall equally apply to arbitral experts and assistants. In such case, the challenge shall be settled by the Arbitral Tribunal.
Art. 29.– In case of vacancy for any reason – challenge, dismissal, abstention, renunciation, obstruction, demise – and if no substitute has been appointed or if the substitute has been prevented from exercising his/her charge, the arbitrator shall be superseded by the party which appointed him/her within 10 days of the date at which the party has taken knowledge of the same. Should the party fail to appoint an arbitrator within that time limit, the president of the Court of Arbitration shall appoint a new arbitrator. These provisions shall also apply to the presiding arbitrator.
Art. 30.– The arbitrators are liable to damages in compliance with the provisions of the law:
a) should they, after acceptance, unduly abandon their duty;
b) should they, without solid reason, fail to participate in the settlement of the dispute or to render the award within the time limit provided by the arbitral agreement or these Rules,
c) should they fail to observe the confidentiality of the arbitration, by publishing or disclosing without the parties’ authorisation data of which they take knowledge as arbitrators, under any other conditions than those provided under Article 8;
d) should they flagrantly neglect their duties.
Art. 31.– (1) The Arbitral Tribunal shall be considered constituted on the date the presiding arbitrator or, as the case may be, the sole arbitrator take up duties, or on the date of the last acceptance if the Arbitral Tribunal is composed of two arbitrators.
(2) The members of the Arbitral Tribunal shall sign a statement by which, confirming acceptance of the appointment, they commit themselves to impartially fulfil their duties as arbitrators and strictly comply with the provisions of these Rules.
Art. 32.– (1) As soon as it is set up, the Arbitral Tribunal shall be entitled to adjudicate the Request for Arbitration and other requests concerning the arbitral procedure, save requests which, as a result of imperative provisions of the law, are in the jurisdiction of the courts of justice.
(2) Communication of requests, documents, information related to the dispute shall be made by the Secretariat of the Court of Arbitration, without the arbitrators coming in direct contact with the parties.
Art. 33.– (1) Unless otherwise agreed by the parties, the Arbitral Tribunal shall render the award within five months at the most of the date of its set up.
(2) The above time limit shall be suspended for the extent of time necessary for deciding on a plea of unconstitutionality or for settlement of an incidental request lodged at the competent court or for completion of the Arbitral Tribunal, as provided under Art. 29, and with the duration of any suspension of the dispute based on a legal provision.
(3) The parties may agree, at any time in the course of the arbitral proceedings, to delay the time limit of arbitration, by either written or oral statement, made before the Arbitral Tribunal and noted down in the minutes of the hearing.
(4) Similarly, the Arbitral Tribunal may order, upon solid grounds, the extension of the time limit of arbitration for no more than two months.
(5) The time limit shall be extended de jure by two months, as provided under Art. 60, and in case one legal entity is deprived of its legal capacity, or in case of death of one of the parties.
(6) The exceeding of the time limits, as provided by this article, shall not be considered as a reason for nullity of the arbitration, unless one of the parties has notified the other party and the Arbitral Tribunal, by the first day of hearings, that he/she understands to disclaim the validity of the arbitration.
Art. 34.– The place of arbitration is the seat of the Court of Arbitration. The parties, in agreement with the president of the Court may, however, decide to sit in some other locale.
Chapter IV
Statement of the Case to the Arbitral Tribunal. Request for Arbitration.
Statement of Defence. Counterclaim. Communication of Documents.
Provisional and Conservatory Measures. Arbitral Expenses
Art. 35.– Prior to forwarding the statement of the case to the Arbitral Tribunal, the interested party may request necessary information from the Secretariat of the Court of Arbitration and may get these Rules, the list of arbitrators and the Schedules of Arbitral Fees and Expenses.
Art. 36.– (1) The Claimant shall submit to the Arbitral Tribunal an application in written form, called Request for Arbitration or arbitral claim, including the following information:
a) name in full and address/residence where the Claimant is a natural person or name and head office where the Claimant is a legal entity. Also shall be mentioned, as the case may be, the registration number with the Register of Commerce, the phone, telex, fax numbers and the bank account;
b) name in full and position of the person who engages or represents a party to a dispute, with relevant evidence of his/her position annexed thereto;
c) reference to the arbitral agreement, with a copy of the contract stipulating it annexed thereto; provided that there is a compromise, a copy thereof shall be attached;
d) the object and the amount of the claim, including the method of calculation;
e) statement of the de facto and de jure grounds for each point of the claim, with reference made to the relevant written or other proofs. Where a request for hearing of witnesses is made, their full names and addresses shall be indicated;
f) full name of the appointed arbitrator or of the sole arbitrator nominated for the case;
g) evidence of the payment of arbitral fee;
h) proof of the notification to the Respondent of the Request for Arbitration and accompanying documents;
i) the party’s signature.
(2) All documents shall be filed in their original or in duplicate bearing the party’s certification.
(3) Where the Request for Arbitration or the documents in the file have been written in a foreign language, the Arbitral Tribunal may ex officio or upon request, order the involved party to submit a Romanian translation or, in case of international commercial arbitration, a translation into an international language. The parties may request the Court of Arbitration to provide for translation at their expense.
Art. 37.– (1) The Request for Arbitration shall be addressed to the Court of Arbitration and shall be filed together with the accompanying documents at the Registrar’s Office of this Court.
(2) The Request for Arbitration shall be considered to have been filed on the date of its registration with the Registrar’s Office of the Court of Arbitration, or, if mailed, on the date specified by the post-mark of the forwarding post-office.
Art. 38. (1) Should the Request fail to meet all the requirements and specifications stipulated under Art. 36, the Secretariat of the Court of Arbitration shall notify the Claimant, as soon as possible, to revise them accordingly within a period of time no longer than 10 days of the date of the receipt of the notification.
(11) If the claimant failed to specify the arbitrator's name, he/she shall appoint such arbitrators within the time limit provided by Article 1. In case of non-compliance thereto, the provisions of paragraphs 2 and 3 of Article 25 shall apply.
(2) The Secretariat shall also verify the payment of the arbitral fee, and if the Claimant has failed to pay it in accordance with the Schedules of Arbitral Fees and Expenses, it shall notify the Claimant the amount and the modality of payment of the fee due.
(3) Should the evidence of the payment of the arbitral fee fail to meet the terms notified by the Secretariat to the Claimant, the Request for Arbitration shall be returned to the Claimant.
Art. 39.– (1) Within no more than 5 days of the date of receipt of the Request for Arbitration or, as the case may be, from the termination of the time limit stipulated under Art. 38 (1), the president of the Court of Arbitration shall set the first date for arbitration for which the parties shall be summoned. The date for arbitration shall not be sooner than 30 days of the forwarding of subpoenas.
(2) Should the Claimant fail to notify the Request for Arbitration directly to the Respondent, such notification together with the accompanying documents, these Rules and the list of arbitrators shall be made, upon the Claimant’s request and together with the subpoenas, by the Secretariat of the Court of Arbitration. In this case, the Request shall be filed in as many duplicates as the number of Respondents plus one duplicate for the Court of Arbitration.
Art. 40.– (1) Upon receipt of the Request for Arbitration, the Respondent shall submit a statement of defence including, on the one hand, the name in full of the arbitrator appointed by him/her or his/her answer to the Claimant’s proposal regarding the settlement of the dispute by a sole arbitrator and the person of the arbitrator and, on the other hand, the special pleas to the Claimant’s request, de facto and de jure answer to such request, the evidence to be used in defence and all the other documents and requirements provided under Art. 36 for the admissibility of a request for arbitration.
(2) Within 20 days of the receipt of the Request for Arbitration, the Respondent shall communicate to the Claimant his/her answer together with the accompanying documents, and shall also submit a copy thereof to the Court of Arbitration, together with evidence of his/her having notified the Claimant.
(3) Failure of the Respondent to communicate or to submit his/her answer shall not imply his/her acceptance of the claims laid by the Claimant.
(4) Where proceedings are adjourned because of the Respondent’s failure to communicate or submit his/her answer, he/she shall be liable to bear the cost of expenditure caused by the delay.
(5) Upon the Respondent’s request, his/her answer shall be communicated by the Secretariat of the Court of Arbitration. In this case, two duplicates of the answer and of the accompanying documents shall be filed.
Art. 41.– As soon as the Arbitral Tribunal has been set up, the Secretariat of the Court of Arbitration shall forward the file to the Arbitral Tribunal and shall make record of such fact and of the remittance date.
Art. 42.– The Secretariat of the Court of Arbitration shall take care that the interval of time between the registration date of the Request for Arbitration and the first date for arbitration should not exceed 60 days, unless the president delays the hearings for justifiable reasons.
Art. 43.– (1) Should the Respondent have claims against the Claimant on grounds derived from the same legal relationship, the former may file a counterclaim.
(2) The counterclaim shall be filed within the time limit for filing the answer or by first day of hearings at the latest and shall comply with the same requirements as the main claim. The counterclaim is due to be settled together with the main claim. Should only the main claim allow for a settlement, the counterclaim may be settled separately.
Art. 44.– (1) The notification, by the Secretariat of the Court of Arbitration, of the Request for Arbitration, subpoenas and arbitral awards shall be made by registered letter with confirmation of delivery or by express delivery mail.
(2) All the other documents, information and various notifications may also be forwarded by registered letter with post note of delivery, by express delivery mail, E-mail, cablegram, telex, telefax or any other channel of communication that allows evidence of the delivery or transmission. In case of telephone communications, the assistant arbitrator shall record in the file the date and hour of the call.
(3) Written notifications to the parties shall be deemed to have been forwarded even if the recipient either refuses receipt or does not take the delivery from the post office, although there is evidence of his being notified thereof.
(4) Any written statement may also be handed over directly to the party or its representative under his/her signature which shall be certified by the assistant arbitrator or an agent of the Court of Arbitration with mention of the date of delivery.
(5) Evidence of the communication shall be included in the file.
Art. 45.– As the case may be, the notification is delivered to the address mentioned in the party’s Request for Arbitration or in the Statement of Defence or in the parties’ contract and mail correspondence. Any change of address shall not be taken into consideration unless the other party and the Court of Arbitration have been duly notified of the change.
Art. 46.– (1) Before or during the arbitral proceedings, either party may request the competent court to institute provisional and conservatory measures with regard to the object of the dispute or to decide on findings of factual circumstances.
(2) Copies of the Request for Arbitration and the arbitral agreement shall be annexed to the above request.
(3) The Arbitral Tribunal shall be notified by the party, having requested provisional and conservatory measures, that such request has been granted.
Art. 47.– In the course of the arbitral proceedings, the Arbitral Tribunal too shall have power to decide on provisional and conservatory measures or on findings of factual circumstances. Should any objection arise, the competent court shall be requested to rule on the execution of the measures.
Art. 48.– (1) The arbitral expenses include: the arbitral fee, expenses for producing evidence, expenses incurred by the translation of documents and of the proceedings, arbitrators’, attorneys’, experts’ and advisers’ fees, travel expenses of the parties, arbitrators, witnesses, experts and advisers as well as other expenditure relating to the settlement of the dispute.
(2) The arbitral fee covers the services provided by the Court of Arbitration in organising and conducting the arbitration procedure.
(3) In domestic disputes, the fees of the Romanian arbitrators, shall be included in the arbitral fee. The arbitrators’ fees shall be paid in advance by the claimant unless the arbitral tribunal decides otherwise.
(4) The amount of the fees provided under Article 1(1)B of the Schedules of Arbitral Fees and Expenses shall apply for one arbitrator.
(5) The provisions of Article 4(7) of the Schedules of Arbitral Fees and Expenses shall apply if an arbitrator is not included on the List of the Court.
(6) The arbitral fees are established and paid in accordance with the Schedules of Arbitral Fees and Expenses, approved by the Executive Board of the Chamber of Commerce and Industry of Romania .
(7) Unless the arbitral fee and the other arbitral expenses are paid in compliance with the Schedules thereabove, no account shall be taken of the Request for Arbitration and the arbitral proceedings shall not be carried out.
(8) The arbitral expenses shall be borne according to both parties’ agreement.
(9) In default of such an agreement, the arbitral expenses shall be borne by the party that has lost the case, in full where all the claims of the Request for Arbitration have been accepted in full. If the Request for Arbitration is accepted in part, the cost represented by the arbitration fee shall be awarded in accordance to the accepted claims. The Arbitral Tribunal shall award the other expenses to the extent it will consider them to be justified, under the circumstances of the case.
(10) Upon request, the Arbitral Tribunal may order the party whose fault caused undue expenses to the other party to indemnify the latter.
Chapter V
Hearings
Art. 49.– (1) The parties may participate at hearings either in person or through representatives and may be assisted by attorneys, advisers, interpreters or other persons.
(2) Where both parties agree, and provided that the Arbitral Tribunal grants approval, the hearings may be attended by other persons as well.
Art. 50.– (1) Failure of one party, although duly summoned, to attend the hearing shall not prevent the progress of the proceedings, unless the absent party submits, the day before the date of the hearing at the latest, a request to the Arbitral Tribunal for adjournment of the hearing on solid grounds and notifies the other party thereof. Only one adjournment may be granted.
(2) The party having attended or been represented in one hearing shall not be summoned every time in the course of arbitral proceedings, being deemed to have knowledge of the next hearing dates, unless otherwise provided by these Rules.
(3) The hearing dates, of which knowledge has been taken or for which subpoenas have been served, may not be changed, unless sound grounds are provided and the parties are notified thereof.
(31) When the subpoena serving procedure has been duly performed, trial, even on the merits, may continue the next day or at short successive time intervals, set with the parties' taking knowledge thereof.
Art. 51.– Either party may request in writing for the dispute to be settled in his/her absence, in consideration of the documents filed.
Art. 52.– In case both parties, although duly summoned, do not attend the hearing on the due date, the Arbitral Tribunal shall proceed with the settlement of the dispute, except where adjournment for justifiable grounds is requested. The Arbitral Tribunal may also adjourn rendering the award and summon the parties where their presence at the hearings or production of evidence is deemed necessary.
Art. 53.– (1) Each party shall have the burden of proof either claim or in defence.
(2) In settling of the dispute, the Arbitral Tribunal may request the parties to present written explanations relative to the claim and the facts of the dispute and order production of any evidence as provided by the law.
(3) Evidence shall be produced during the sessions of the Arbitral Tribunal.
(4) Witnesses and experts shall be heard without being asked to take the oath.
(5) The Arbitral Tribunal is not qualified to exert coercion or punish witnesses or experts. To have these measures decided, the parties shall apply to the competent courts.
(6) Arbitrators shall value the evidence in accordance with their intimate conviction.
Art. 54.– (1) Any plea against the existence or validity of the arbitral agreement, the composition of the Arbitral Tribunal, the limits of the arbitrators’ authority, and any other plea, shall be claimed, under sanction of forfeiture, in the Statement of Defence or by the date of the first day of hearings, at the latest.
(2) As provided under Art. 134 of the Code of Civil Procedure, the first day of hearings shall be the date when the parties duly summoned may submit their pleas.
(3) Public policy pleas may be claimed at any moment during the arbitral dispute.
Art. 541.-(1) The plea on the unconstitutionality of laws or ordinances can be raised at the request of either party or, ex officio, by the Arbitral Tribunal, under the terms of the law on the organization and operation of the Constitutional Court.
(2) The submission of the plea to the Constitutional Court shall be ordered by the Arbitral Tribunal to which such plea of unconstitutionality was submitted, in a record which shall include the parties' standpoints, the opinion of the Arbitral Tribunal on that plea, and which shall be accompanied by the proofs submitted by the parties. If the plea was claimed ex officio, the record must provide the reasons thereof, including also the parties' arguments, and the necessary evidence.
(3) If the plea is inadmissible, as contrary to the provisions of the law on the organization and operation of the Constitutional Court, the Arbitral Tribunal shall dismiss it in a reasoned record, without submitting the plea to the Constitutional Court.
(4) The record whereby a plea is lodged, with the attached documents, shall be sent to the Constitutional Court by letter of the President of the Court of Arbitration.
Art. 542.-(1) Any requests, statements or other written documents shall be submitted no later than the first day of hearings.
(2) Subject to the law, the Arbitral Tribunal may accept one party’s request for production of evidence only if such evidence has been asked for in the Request for Arbitration, in the Answer or in written statements submitted prior to the first day of hearings and notified to the other party. Evidence for the production of which such requirements are not observed, cannot be subsequently called upon during the arbitration unless:
a) the necessity of such evidence arises from the pending hearings;
b) the production of evidence is not a cause for delay in the settlement of the dispute.
Art. 543.-(1) Any irregularity in the performance of the procedure acts shall be covered if the party did not invoke it on the first hearing date following such irregularity and before it makes its arguments on the merits of the case.
(2) No one can invoke the irregularity caused by his/her own action.
Art. 55.– (1) The arbitral proceedings shall be recorded in a minute.
(2) Any decision of the Arbitral Tribunal and the grounds thereof shall be written down in the minute.
(3) Along with the mentions stipulated under Art. 63 paragraph (1) letters a) and b), the minutes of the session shall include:
a) a brief description of the proceedings;
b) requests and pleas made by the parties;
c) the reasons underlying the decided measures;
d) the order of the Tribunal;
e) the signatures of the arbitrators with observance of the provisions under
Art. 59 and the signature of the assistant arbitrator.(4) The parties are entitled to take knowledge of the content of the minutes and of the documents in the file.
(5) Upon the parties’ request or ex officio, the Arbitral Tribunal may amend or complement the minutes of the session by other minutes, under the provisions of Article 64.
(6) A copy of the minute of the session shall be delivered to the parties upon their request.
Chapter VI
Arbitral Award
Art. 56.– (1) The arbitral proceedings shall be declared closed on the rendering of an arbitral judgement, called arbitral award.
(2) Where the Respondent acknowledges partially the Claimant’s claims, the Arbitral Tribunal shall deliver, upon the latter’s request, an interim award in accordance to the acknowledgement.
(3) Repealed.
(4) Should the Claimant withdraw his/her Request for Arbitration before the Arbitral Tribunal has been set up, the arbitral proceedings shall end by closing minutes made by the president of the Court of Arbitration.
Art. 57.– (1) The Arbitral Tribunal shall settle the dispute on the grounds of the main contract and the applicable law, taking into consideration when necessary the trade usage.
(2) Upon an explicit agreement between the parties, the Arbitral Tribunal may make an award ex aequo et bono.
Art. 58.– (1) As soon as the Arbitral Tribunal considers that all circumstances of the case have been clarified correspondingly, it shall declare the proceedings closed and proceed to deliberations and the rendering of the award in camera, with the participation of all its members.
(2) The delivery of the award may be delayed by 30 days at the latest provided that the period is no longer than the time limit stipulated under Article 33 with regard to arbitration.
Art. 59.– Where the Arbitral Tribunal is composed of an odd number of arbitrators, the award shall be given by a majority of votes. The arbitrator who is of a different opinion shall write and sign his/her dissenting opinion, showing the reasons on which it rests.
Art. 60.– Where the Arbitral Tribunal is composed of an even number of arbitrators and they do not agree to the decision to be taken, an umpire shall be appointed in accordance with the agreement between the parties, or, in default of this, by the president of the Court of Arbitration. The umpire thus appointed shall join one of the decisions, which he/she may amend, or he/she may render another decision, but only after having heard both parties and following consultations with the other arbitrators.
Art. 61.– (1) Should the Arbitral Tribunal, in the course of the deliberations and prior to the delivery of the award, deem that further clarifications are necessary, the dispute shall be deferred for additional hearings, a new hearing date being fixed for arbitration with the parties being duly summoned, on condition that the new hearing date should not be later than the time limit for arbitration as provided under Art. 33.
Art. 62.– (1) Immediately after the closure of the deliberations and once the decision is reached, the judgement part of the award of the Arbitral Tribunal shall be written and it shall bear the signatures of all the members of the Arbitral Tribunal and of the assistant arbitrator.
(2) Where there is a dissenting opinion, it shall be recorded in the judgement part of the award, and its reasons shall be provided separately.
Art. 63.– (1) The arbitral award shall be drawn up in writing and shall include:
a) the names of the members of the Arbitral Tribunal and of the assistant arbitrator, the place and date of the rendering of the award;
b) the full personal or corporate names of the parties and their addresses – residence or head office – as well as the full names of the parties’ representatives and of the other persons having attended the hearings of the dispute;
c) mention of the arbitral agreement underlying the arbitral proceedings;
d) the object of the dispute and a summary of the parties’ respective claims;
e) the de facto and de jure grounds of the award or in case of an ex aequo et bono arbitral award, the grounds underlying the solution;
f) the order;
g) the affixed signatures of all arbitrators, unless the provisions under Art. 59 are applicable, and the signature of the assistant arbitrator.
(2) Where one of the arbitrators is prevented from having his/her signature affixed on the award, the cause having prevented him/her from doing so shall be mentioned, with the presiding arbitrator’s confirmation under signature, and in case the presiding arbitrator is prevented therefrom, under the signature of the President of the Court of Arbitration.
Art. 64.– (1) Any errors or omissions relative to the names, capacity or claims of the parties or of calculation as well as any other material errors in the text of the arbitral awards or minutes may be corrected ex officio or upon the request of either party. The request shall be made within 15 days of the receipt of the award, and, in the case of the minutes, by the following hearing at the latest.
(2) The Arbitral Tribunal shall decide on such request in a record. The parties shall be summoned only if the Arbitral Tribunal considers it should provide clarifications to them.
(3) Such record shall be attached to the award both in the case file and in the file containing the decisions of the Court of Arbitration.
Art. 641.- (1) In case clarifications are needed with respect to the meaning, scope, and application of the judgement part of the arbitral award or the latter contains conflicting provisions, either party may ask the arbitral tribunal which made the award to clarify the judgment or to remove the conflicting provisions, within 15 days of receiving the award.
(2) The arbitral tribunal shall settle such request in emergency, in a record, summoning the parties. The provisions Paragraph 3 of Article 64 shall apply accordingly.
Art. 642.- (1) Where the Arbitral Tribunal omits to decide in its award on an individual, main or accessory, claim or an a connected or incidental request the completion of the award may be requested within 15 days of its receipt.
(2) Such request shall be settled urgently, with the summoning of the parties, by a separate award. The provisions of paragraph 3 of Article 64 shall apply accordingly.
(3) The provisions of this Article shall also apply where the Arbitral Tribunal failed to decide on requests made by witnesses, experts, translators, interpreters, or counsels, relative to their rights.
Art. 643.- (1) The records made under Articles 64 and 641, and the arbitral award rendered under Article 642 can be set aside only following an action for annulment.
(2) The parties cannot be compelled to cover the award correction, clarification or completion or the costs.
Art. 65.– The arbitral award shall be communicated to the parties within one month, at the latest, of the date of its rendering.
Chapter VII
Character and Enforcement of the Arbitral Award.
Setting Aside of the Arbitral Award
Art. 66.– (1) The arbitral award shall be final and binding. The party against which it is rendered shall execute it on his/her own will either immediately or by the deadline set therein.
(2) The arbitral award communicated to the parties shall have the final effects as any final decision rendered by a court of law.
Art. 67.– (1) Upon the request of the winning party, the arbitral award shall be invested with an executory formula, as provided by the law.
(2) The investment request shall be submitted to the competent court at the seat of the Court of Arbitration.
Art. 68.– The arbitral award invested with an executory formula shall be regarded as a writ of execution and shall be carried into effect by force as any enforceable judgement.
Art. 69.– The arbitral award may only be set aside following a petition for annulment for one of the following reasons:
a) the dispute was not susceptible to be settled by way of arbitration;
b) the Arbitral Tribunal has settled the dispute in default of an arbitral agreement or on the grounds of a void or inoperative arbitral agreement;
c) the Arbitral Tribunal has not been set up in compliance with the arbitral agreement;
d) the party was absent on the date of the hearing of the case and the summoning procedure has not been legally fulfilled;
e) the arbitral award has been rendered after lapse of the arbitration delay provided under Art. 3533 of the Code of Civil Procedure;
f) the Arbitral Tribunal has decided on matters which have not been requested or has failed to decide upon a requested matter, or has given more than requested;
g) the arbitral award fails to include the order and the reasons, to show the date and place of its rendering, and it is not signed by the arbitrators;
h) the order of the arbitral award includes provisions which cannot be complied with;
i) the arbitral award infringes the public order, bones mores or mandatory provisions of the law.
Art. 70.– (1) The parties cannot waive, by way of the arbitral agreement, their right to institute proceedings to set aside the arbitral award.
(2) Waiving such right may, however, be made after the delivery of the arbitral award.
Art. 71.– (1) An action for setting aside the award may be instituted within one month since it was communicated, directly at the competent court of law, which shall be sent the case file as soon as its request thereof has been received.
Chapter VIII
Special Provisions regarding International Commercial Arbitration
Art. 72.– (1) Alongside the provisions of these Rules, the provisions of the international conventions to which Romania is a party shall also apply in the settlement of international commercial disputes.
(2) The parties shall be free to decide either for these Rules, or for other rules of arbitral procedure. In case the parties have opted for the UNCITRAL (United Nations Commission for International Trade Law) Rules of Arbitration, the arbitrator Appointing Authority shall be the president of the Court of Arbitration.
Art. 73.– (1) The parties shall be free to determine, by their agreement, the law applicable to the merits of the case.
(2) In default of such agreement, the Arbitral Tribunal shall decide on the applicable law, according to the pertinent conflict of laws rules.
Art. 74.– By the arbitral agreement referring to international commercial arbitration, the parties may establish that the place of arbitration be in Romania or in a different country.
Art. 75.– (1) In international commercial arbitration held in Romania or in compliance with the Romanian law, the Arbitral Tribunal shall be composed of an odd number of arbitrators, each party having the right to appoint an even number of arbitrators, either Romanian or foreign citizens.
(2) Repealed.
(3) After the Arbitral Tribunal has been set up, and, as the case may be, after the file has been completed, the presiding arbitrator shall fix the date for hearing the dispute for the date on which the parties are summoned to appear in court. The first date for arbitration shall not be sooner than 45 days from the date on which subpoenas have been forwarded.
Art. 76.– (1) In international commercial arbitration, the duration of the time limits provided under Art. 38, paragraph 1 and Art. 6 shall be double.
(2) Unless otherwise agreed by the parties, the Arbitral Tribunal shall currently render the award within no more than 12 months at the latest of the date of its constitution.
Art. 77.– (1) The hearings of the dispute before the Arbitral Tribunal shall be in the language established by the arbitral agreement or, unless otherwise provided or a subsequent convention intervenes, in an international language decided by the Arbitral Tribunal.
(2) Where a party is ignorant of the language in which the arbitration proceeds, the Arbitral Tribunal shall provide for the services of an interpreter upon the request and at the expense of that party.
(3) The parties may attend the hearings with their interpreter.
Chapter IX
Special Provisions regarding Ad-hoc Arbitration
Art. 78.– (1) In case of an ad-hoc arbitration organised by the parties for the settlement of a dispute, the Court of Arbitration may provide assistance to them upon their joint request or upon one party’s individual request followed by the other party’s agreement formulated in writing, and the payment of the due arbitral fee.
(2) The assistance of the Court of Arbitration in an ad-hoc arbitration consists in fulfilling all or a part of the following tasks, in accordance with the agreement with the parties:
a) appointment of the arbitrators and of the presiding arbitrator, in accordance with the arbitral agreement and these Rules of Arbitration and, in general, carrying out or, as the case may be, verifying the fulfilment of the formalities required for the composition of the Arbitral Tribunal and the establishment of the arbitrators’ fees;
b) making available to the parties these Rules of Arbitration and a list of arbitrators, both of which being optional to the parties;
c) providing, upon arbitrators’ request, of data, information or documents relative to doctrinal and jurisprudential solutions in a particular matter;
d) providing secretarial services for arbitration such as: receipt and registration of mailed documents, issue of subpoenas and communication of written documents, issue of various notifications to the parties and arbitrators, record of the proceedings in the minutes of the sessions, file registration of documents, filing and keeping of files, as well as other similar activities which may be required for a proper development of the arbitration proceedings;
e) providing adequate rooming for arbitration proceedings;
f) monitoring and facilitating arbitration proceedings in order to ensure their proper on-schedule development;
g) examination, upon the Arbitral Tribunal’s and the parties’ request, of the draft arbitral award in terms of its wording and/or legal matters, without, however, influencing upon the arbitrators’ free decision.
Chapter IX1
Removing a dispute from the docket. Lapse procedure
Art. 781.- (1) In case the normal conduct of the dispute is prevented by fault of the Claimant, because of his/her failure to perform his/her obligations under these Rules, he/she shall be served a written notification, whereby the obligations incumbent on him/her shall be indicated, the time limit in which to perform them, and also the consequences of his/her failure to comply.
(2) If the claimant does not answer thereto or does not comply to the obligations incumbent on him/her, the dispute shall be suspended and the arbitral action shall be returned to the claimant, the arbitral fees being considered as properly paid.
Art. 782.- (1) The Request for Arbitration shall expire de jure if no progress in its resolution has been made for six months by fault of the party.
(2) The lapse shall be ascertained ex officio or at the request of the interested party. In either case, the President of the Court of Arbitration shall set a hearing date and order the urgent summoning of the parties and the drafting of a report on the procedural acts pertaining to the lapse.
(3) The Arbitral Tribunal shall consist of a sole arbitrator, in the person of the President of the Court of Arbitration or of an arbitrator appointed by the latter.
(4) If the procedure of summoning one of the parties has not been completed because the party is not known ore moved away and his/her new address is not known or refuses receipt of the subpoena, or any person is found to be absent at the domicile or headquarters specified in documents of the case file, that party shall be summoned for the lapse procedures by a subpoena posted on the door of the Court of Arbitration.
Chapter X
Final Provisions
Art. 79.– These Rules shall be complemented by the provisions of the ordinary rules of the Romanian civil procedure insofar as the same are compatible with the arbitration and the commercial character of the disputes.
Art. 80.– The disputes in progress on the date of enforcement of these Rules shall be settled in compliance with the Rules in force on the date of submission of the Request for Arbitration, unless the parties choose these Rules.
Art. 81.– (1) These Rules shall come into force on January 1, 2000.
(2) Any contrary provisions shall be repealed as of the date of coming into force of these Rules.
1)
These Rules have been issued in compliance with Art. 5, letter j and Art. 11 and Art. 13 of the Decree-Law No. 139/1990 regarding the chambers of commerce and industry of Romania, and were approved by the Board of the Court of Arbitration by Decision No. 1 of June 30, 2004.