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ARBITRATION WITHIN THE COURT OF INTERNATIONAL COMMERCIAL ARBITRATION ATTACHED TO

THE NATIONAL CHAMBER OF COMMERCE AND INDUSTRY OF ROMANIA
Conference notes
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Cristiana I. STOICA, Ph.D.

I. General considerations about the institutional arbitration of the Court of International
Commercial Arbitration attached to the National Chamber of Commerce and Industry of
Romania
A. Organization
B. Arbitrability of disputes
C. Arbitration Agreement

Bibliography:
Arbitration Codex (English version), published by the Court of International Commercial Arbitration,
2013
Court of Arbitration website: www.arbitration.ccir.ro/engleza
Rules of Arbitration 2013 (Rules 2013)
Rules on the Organisation and Operation of the Court of International Commercial Arbitration
attached to the Chamber of Commerce and Industry of Romania-2013(Chart 2013)
Law no.335 of December 3rd, 2007-Chambers of Commerce(Law 335)
New Civil Procedure Code (New Code)
Book IV, Titles I(General Provisions), II(Arbitration Agreement), VII (Institutional Arbitration)
Book VII, Title IV (International Arbitration and the Effects of Foreign International Awards)

A. Organization

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The present Conference Notes represent the personal document belonging to the author Cristiana I. Stoica which
will serve exclusively for the preparation of the examination of the Master classes on International Arbitration
Law Faculty, University of Bucharest. The use of this document for other purposes is allowed only with the express
agreement of the author.
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Introduction: Institutional arbitration in Romania-historical considerations
The voluntary arbitration was for the first time introduced in Book IV of the Romanian
Civil Procedure Code (the Code) enacted in September 9, 1865
Institutional arbitration was not provided by this law (only ad-hoc arbitration)
In 1925, Romania became party to Geneva Protocol on Arbitration Clauses 1923 and in
1931 ratified Geneva Convention on the Execution of Foreign Arbitral Awards 1927
During the communist regime, the Code was subsequently modified in 1948, in 1958,
and in 1979; Book IV was never abolished.
Few important achievements in the field of arbitration:
the establishment in 1954 of the Bucharest Commission for Arbitration
competent to solve disputes between the CMEA states in the form of
compulsory arbitration, where any form of voluntary arbitration was excluded;
the Commission applied its own rules of arbitration, not the provisions of Book
IV
In conformity with its rules, the Commission was called to solve international
commercial disputes between a Romanian state owned legal entity and foreign
legal entities or individuals, or between foreign parties, in the form of voluntary
arbitration, which was included after the establishment of the Commission
Notoriety of law specialists of the time acting as arbitrators was transferred to
the institution
UNCITRAL Rules (1976) and UNCITRAL Model-Law (1985) were ignored during
the communist regime, and therefore, were not introduced within the
Romanian arbitral legislation, despite the efforts of the law doctrine to absorb
them in the domestic law
after 1990, UNCITRAL arbitration ruling served as the main source of inspiration
for the drafting of the new Book IV of the Civil Procedure Code adopted in 1993
institutional arbitration was not provided by the former procedural code of
1993
The chambers of commerce were re-instituted by Decree no.139/1990 and by
Government Decision no.799/1990; the former Commission for Arbitration was
transformed into the International Court of Arbitration attached to the National
Chamber, leading the international arbitration activity in Romania
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the New Civil Procedure Code (the New Code), known as Law no.134/2010,
entered into force on February 15, 2013
The New Code Law 134/2010 provides for the arbitration, in general, in Book
IV, Titles I to VII, setting forth rules applying to any form of voluntary arbitration
(domestic and international, institutional and ad-hoc, substantive law and ex
equo et bonum), except for the compulsory arbitration, which is set forth by the
law or by an international agreement.
Institutional arbitration is for the first time provided, in a special section - Title
VII of Book IV, of the New Code
***

1. The Rules regarding the Organization of Institutional Arbitration

i. Arbitration is the recognized as an expression of the free access to justice reflected in the
article 21 of the Romanian fundamental law regarding the free access to justice and the
right to a fair trial right to a fair trial
ii. Definition of the institutional arbitration-international concept
An institutional arbitration is defined by the existence of an organization linking the
arbitrators and the parties, in conformity with their arbitration agreement, the objective
of which is to administrate arbitration proceedings
iii. Regulation of institutional arbitration by the New Code; the essence of the regulation
There are only a few articles providing specifically on institutional arbitration which are
embodied by Title VII of Book IV and this is for the first time since the code was in force
The newly introduced provisions characterize this form of arbitration as a third level type of
ruling, an alternative to ad-hoc arbitration
The essence of the concept of administrated arbitration (institutional arbitration) is included
in Article 545 from the section General provisions and in Article 616 (1) of the Book IV:
o The institutional arbitration is of a private nature, enjoying of a permanent character and
independent towards the ordinary jurisdiction, being selected and organized based on the
written agreement of the parties in dispute



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(Article 616 (1))-Definition of institutional arbitration
Institutional arbitration is that form of arbitration that is constituted and functions
permanently attached to an organization or a domestic or international institution or
as an autonomous non-governmental organization of public interest, pursuant to the
law, based on its rules that are applicable to all the disputes that are brought in front
of it for settlement under an arbitration agreement. The activity of the arbitral
institution shall not have an economic character and shall not seek profit
Independence of the arbitral institution is fundamental: If an arbitral institution is not
independent, neither the arbitrators are independent. The autonomous character of the
institutional arbitration in relation to the institution or the organization that established it is
reflected in Article 616 (2) of the New Code
Article 619(1) of the New Code: the arbitration rules applying to the institutional arbitration are
adopted by its governing body in conformity with its own norms regarding its operational
activity comprised in its act of establishment
The parties are entitled to opt not only for arbitration, but also for a specific modality as to the
organization of their arbitration- in conformity with lex voluntatis principle; the New Code
provides that the parties may choose the arbitral institution by their arbitration agreement
(Article 617(1))
Article 541 stipulates that the rules adopted (by the parties or) by the arbitral institution may
derogate from the general procedural law, provided they do not violate the public order and the
mandatory law provisions
The choice of a particular institutional arbitration referred to in the arbitration agreement, has
the significance of the choice of the parties to apply the rules of that institution and any
derogation from this principle is considered null and void by the New Code. However, the
governing body of the arbitral institution may decide to also apply- either effectively or by
analogy- the rules of the parties (lex voluntatis), depending of the circumstances of the case and
of the content of the parties rules (Article 619(2)). If the parties do not provide otherwise, then
the rules of the institutional arbitration in force when the arbitral claim was filed will apply
(Article 619(3))
In case of any discrepancies between the arbitration agreement and the rules of the institution
to arbitrate, the arbitration agreement will prevail (Article 617 (2)), giving expression to the lex
voluntatis principle.
However, to the extent that the arbitral institution gives priority to its own rules towards the
rules of the parties, then lex voluntatis principle will be of a subsidiary application

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2. The Chamber Court System of Institutional Arbitration: Law no. 335 of December 3rd,
2007
The Arbitration Court is reorganised as a permanent non-corporate arbitration institution
attached to the Chamber of Commerce and Industry of Romania, for the administration of
international and domestic arbitration.
The chamber system comprises the chambers of the 41 counties, as territorial chambers
(camere judetene), the Bucharest Chamber, the National Chamber and the bilateral chambers.
In accordance with Law 335, the chambers are enjoying of autonomy and are of public utility,
acting as non-profit and non-governmental legal entities.
The National Chamber (Camera de Comert si Industrie a Romaniei) is considered by law to be
the legal successor of the former national chamber established by the Decree-law no.139/1990,
and leads the entire commercial arbitration system through the intermediate of the Court of
Arbitration attached to this Chamber (the International Court of Arbitration attached to
Chamber of Commerce of Romania)
The arbitration activity of territorial chambers is coordinated by the International Court of
Arbitration and is performed in conformity with the New Code, with their own operating rules
and with the Rules for Arbitration Procedure of the Court (currently, the Rules 2013). In their
arbitral activity, the territorial chambers adopted the Court Rules 2013, as their own ruling
Apart from the commercial chamber system, arbitral proceedings are also organized in specific
economic sectors for solving disputes arising e.g., from insurance and reinsurance contracts,
from contracts related to the capital markets activities or in connection with the activity of the
expert accountants and of the accountants. The specific rules for arbitration adopted by such
special arbitral institutions in fact almost entirely absorbed the provisions on ad hoc arbitration
of Book IV of the Romanian civil procedural law

3. The Organisation of the Court of International Commercial Arbitration: the Chart
To give effect to the principle stated by Article 616(2) of the New Code regarding the full
separation between the institutional arbitration activity on a side and the functioning of the
organization which created the Court (the National Chamber), on the other side, the Court
issued its own organizational chart - the Rules on the Organization and Operation of the Court
of International Commercial Arbitration attached to the Chamber of Commerce and Industry
of Romania (the Chart)
In conformity with the Regulation on the Organization and the Operation of the Court of
International Commercial Arbitration attached to the Chamber of Commerce and Industry of
Romania, the Court provides the following services: arbitration, consultancy on procedures,
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studies and research in the field of arbitration, co-operation with the arbitration commissions
within the system of Chambers of Commerce and Industry in Romania
the Court organizes institutional arbitration -and ad-hoc arbitration, applying its own procedure-
the Rules of Arbitration Procedure of the Court of Arbitration (the Rules 2013or the Court
Rules) , the Civil Procedure Code rules-Book IV, if not conflicting with its own rules and the
European Convention on international commercial arbitration signed at Geneva on April 21,
1961
The Chart (Article 3) stipulates that nominating the Court as institutional arbitration in the
arbitration agreement means full submission to its rules (the Rules 2013). This provision is
identical with the general principle stated by the New Code in Article 619(2)
The Court organizational structure is under the decisional power of the President of the
National Chamber and of the Governing Board of this later
The Governing Board of the National Chamber has the power to dismiss the members of the
Court Board
The Chart specifies that the National Chamber should not interfere in the arbitration dispute
or influence in any manner the course of arbitration, which is consistent with the New Code
principle stated in Article 616(2) on the full autonomy of institutional arbitration courts
towards the institution which has established the arbitration court
According to its Rules of Arbitration 2013, the Court settles, in accordance with the law or ex
aequo et bono, international disputes, under the arbitration agreement concluded by the
parties to the contract. The Arbitration Court also settles domestic disputes.
***

B. Arbitrability of disputes
a. Definition:
specific classes of disputes are barred from arbitration because of national legislation or
judicial authority
Definition resulting from NY Convention 58: article II(1);subject matter capable of
settlement by arbitration; article V(2): subject matter is not capable of settlement by
arbitration under the law of the country of enforcement/enforcement
Important in international arbitration-in connection with enforceability of arbitral awards

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b. Separability /Autonomy of arbitration agreement:
Arbitration clause/agreement-separated by the rest of the contract; full independence
Invalidation of main contract does not invalidate the arbitration clause/agreement attached
to the main contract;
Separate reasons for invalidation of an arbitral agreement apply (prescribed by the rules of
the arbitral institution);
General attack of the main contract is for the arbitrators.
c. Competence-competence principle: the arbitrators decide if they are not competent to deal
with the substantive law of the arbitration (and not the court)
The limitations imposed by local jurisdiction (place of arbitration and place of enforcement)
Pre-award criteria and post-award criteria for determining the applicable law related to
arbitrability
Verification of the domestic law of the place of arbitration-pre-award/arbitrators
Verification of the domestic law of the place of enforcement-post ward/court of law
Lex voluntatis/vs. national laws/conflict of law analysis-pre-award exercise
Parties may exclude by their agreement the subject matters from arbitration
National law provides about the limitations imposed to arbitration/despite the express
agreement of the parties to defer to arbitration a specific subject matter or if the parties did
not
Arbitrators determine the law of the contract which contains the limitations to arbitration
National law/Substantive rules on objective arbitrability (differs from state to state)
Which types of disputes are the exclusive domain of national courts
Which disputes can be decided in arbitration
Gradual enlargement of the scope of arbitration in many jurisdictions
Antitrust, competition, insolvency, IP, labour, civil status and family disputes-excepted from
arbitration
Post-award exercise/enforceability:
NC C 58-not capable of settlement by arbitration by the law of the place of enforcement;
recognition/enforcement of the award would be contrary to public policy
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i. Effects of non-arbitrability:
I. Arbitral award declared null and void/challenged (as per the law applying to the subject
matter)
II. Courts apply ex officio the national law regarding the enforceability/recognition-reject/non-
arbitrability
i. If the party opposing to recognition/enforcement invokes that the subject matter dealt
with in the arbitral award is not arbitrable under the foreign law applicable to the
arbitration agreement, the recognition and enforcement of the arbitral award can be
refused provided that the opposing party can prove that the dispute is non-arbitrable
under the foreign applicable law of the arbitration agreement
New Code:
the provisions of Article 1111 are similar with the international standards regarding the concept
of arbitrability
o depending of the nature of the rights in dispute, subject matters are, in general, arbitrable
when they refer to commercial freely disposable private rights arising from a defined legal
relationship between the parties.
o the law of the place of arbitration should not give the matter in dispute under the exclusive
competence of the ordinary court belonging to the jurisdiction where the arbitral tribunal is
located
o Article 1111(2)) stipulates that the arbitral award issued in violation with the exclusive
competence of the ordinary courts is not enforceable in the state where the arbitration
institution is located and that the state entities or the organisations being under the state
control can enter into arbitration agreements
the provisions of Article 1111 are similar with the international standards regarding the concept
of arbitrability
o The New Code (Article 1112(2)) stipulates that the law governing the substance of an arbitral
agreement can be determined among the following laws: lex voluntatis, the law governing the
dispute, the law governing the agreement which contains the arbitration clause or the
Romanian law. The provisions are different from the international treaties on international
arbitration to which Romanian is party: New York Convention 1958 and Geneva Convention
1961
o If the Romanian law applies, there should be considered as well the provisions of articles 550
and 551 of the New Code regarding the compromissory clause and the compromise
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o the invalidity of the arbitration agreement does not entail the automatic invalidity of the
arbitration agreement. Similarly, the competence-competence principle, founds its place in
the national arbitration proceedings law (Article 1118), on the condition that, when a matter of
non-competence of the court of arbitration is to be addressed, this should be expressed in the
form of a preliminary defense and must be raised prior to any substantive defense (in limine
litis), as it is stipulated by the New Code in Article 1118(3)
o the arbitration tribunal shall apply the substantive law established by the parties and if the
parties have failed to provide it in the arbitration agreement, then the court will apply the law
that it deems appropriate, taking into account the practices and the rules of professional
conduct (Article 1119(1)).
***

C. The Arbitration Agreement
International standards
Arising from the mutual consent of the parties
The parties must enjoy of legal capacity to enter into an arbitration agreement
The agreement must be in writing
It must arise from a defined legal relationship-either contractual or non-contractual
The subject matter must be arbitrable(referring to economic or disposable private rights)
UNICTRAL Model Law-article 7.1-An agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a defined
relationship, whether contractual or not
NY C 58-article II.1-Each Contracting State shall recognize an agreement in writing under
which the parties undertake to submit to arbitration all or any differences which have arisen
or which arise between them in respect of a defined legal relationship whether contractual
or not concerning subject matter capable of settlement by arbitration
In order to determine the enforcement of the arbitration agreement, we need to look at the
requirements laid down by the applicable law
The applicable law to the arbitration agreement=the law governing the formation, validity,
enforcement and termination of the arbitration agreement (lex voluntatis/the contract
law/the law of the place of arbitration)

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New Code: Title II
Written form/authenticated form
The validity of the arbitration agreement relies on its compulsory written form (ad
validitatem), by written document, by telegram, telex, facsimile, electronic mail or by any
means of communication which may be evidenced by text (Article 1112(1)) , and on grounds
of substantive law provided by the arbitration agreement.
Arbitration agreement/arbitration clause
Reference to the institutional arbitration should be express
Autonomy of the compromissory clause
Full applicability of the compromissory clause in case of doubtful meaning
Institutional arbitration: simple reference to institutional arbitration means choice of its rules
regarding appointing of arbitrators
Exclusion of court of law competence
Verification of its own competence by the court when the dispute was deferred in front of this
one in particular circumstances
The refusal to arbitrate (Article 621) expressed by an institutional arbitration does not affect the
life of an arbitration agreement and the dispute shall be solved in conformity with the general
rules of proceedings set forth by Book IV, Titles IV for ad-hoc arbitration. This does not mean the
refusal of the arbitration by the arbitrators, but it is possible to have a refusal coming from the
institution, e.g., in accepting the arbitral requests, as long as the arbitral taxes are not duly paid
by the parties .
Rules 2013:
The arbitration clause included as annex to the Rules 2013-
Any dispute under or related to this agreement, including with respect to the execution, performance or
termination hereof, shall be settled by means of arbitration, by the Court of International Commercial
Arbitration attached to the Chamber of Commerce and Industry of Romania, in compliance with the
Rules of arbitration procedure of the Court of International Commercial Arbitration, in force, published in
the Official Monitor of Romania, Part. I
The submission to an arbitration to take place in front of the Court has as immediate effect
the full acceptance of the Court Rules, with no other exceptions
The philosophy of the Court Rules is to base any arbitration in front of the Court on the exclusive
ruling of this institution, in the sense that the parties, in their contract, should submit lex
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voluntatis to a limitation in choosing their arbitrators and in deciding over the procedural rules
to apply to their arbitration.
This limitation results as well from Article 619(2) of the New Code, which stipulates that by
designating of a certain arbitral institution as competent to resolve a specific dispute or a type
of disputes, the parties automatically agree to apply the procedural rules of that institution.
This specific limitation provided by the Rules 2013 and the New Code excludes as well the
application of other important rules contained in the New Code:
o i) the prevalence of the arbitration agreement in case of conflict with the procedural rules of
an institutional arbitration organisation (Article 617/2);
o ii)the exceptional application of the rules of the institutional arbitration organisation
referred by the arbitration agreement, when the parties did not provide their own rules for
arbitration (Article 619/3); and
o iii) the exceptional application of the parties own rules, in conformity with the
circumstances of a particular case, when an arbitration institution may give effect to the
parties option for their own rules (Article 619(2), second sentence).
Therefore, the submission to an arbitration to take place in front of the Court has as immediate
effect the full acceptance of the Court Rules, with no other exceptions.
Comments
In order to determine the enforcement of the arbitration agreement, we need to look at the
requirements laid down by the applicable law.
If the applicable law is one of the modern arbitration laws based upon the Model Law, the
parties will not need to sign a new agreement later, and the arbitration clause may set the
arbitration proceedings in motion.
If, contrary, the applicable law requires that a submission agreement be signed even if there is a
previous arbitration clause, it is necessary to see what the requirements for this new agreement
are and how it can be executed in case one of the parties refuses to cooperate.


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II. The Arbitral Tribunal
A. The arbitrators. The appointment of arbitrators. The act of acceptance. Incidents
B. The set-up of the arbitral tribunal
C. The term of arbitration
D. The place and the language of the arbitration

Bibliography:
Arbitration Codex (English version), published by the Court of International Commercial Arbitration,
2013
Court of Arbitration website: www.arbitration.ccir.ro/engleza
Rules 2013 - Chapter III; Chapter IV, Section 4, 5, 7; Chapter VI
New Code:
Book IV, Title III and Title VII
NY Convention 58
UNCITRAL Model Law











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A. The arbitrators. The appointment of arbitrators. The act of acceptance. Incidents

International standards
Appointment and nomination
Freedom of contract principle/lex voluntatis-in choosing the arbitrators or in providing the
means by which arbitrators are chosen
It is exceptional the limitation of the parties by an arbitral institution concerning the choice
of the arbitrators
Arbitrators sole arbitrator or three arbitrators
Equality of the parties principle appliance in nominating an arbitrator by each of the parties
in dispute
General practice: appointment by name after the dispute arises
Defining the method of appointment and nomination by agreement
Appointing authority/established by the parties/appointment by an arbitral institution
Party-appointed arbitrator must be independent and impartial
Parties have to cooperate in the appointment of arbitrators process
Criteria for selecting the arbitrators (by an institution or an appointing authority)
Court interventions
The arbitrators qualification
Capacity to evaluate the facts and the law in the subject matter in dispute
Good expertise and relevant experience in conducting and administrating the dispute into a
fair award for both parties, in particular for the losing one
Natural person, chosen by the parties, based on a specific qualifications which the parties
may agree upon
Nationality does not represent a condition for appointment
Adequate working knowledge of the language of arbitration
Independence of the arbitrators
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o Neutrality and impartiality-towards the parties and among arbitrators
o Duty to disclose
Challenge of arbitrators
Avoidance of challenge
Challenge to be brought in good faith
Challenge procedures
o The law applicable to the arbitration
o Authority to decide on the challenge
Arbitral tribunal
Grounds of challenge
Timing of challenge
Effects of the challenge regarding the continuation of the arbitration
Replacement of arbitrators
Consent of the parties to dismissal/replacement
Resignation and replacement
Replacement following to challenge
Non-replacement
Duties of the arbitrators
Fulfilment of tasks during the entire procedure
Conduct of arbitration with impartiality
Treatment of the parties based on an equal treatment
Communications and contacts-between arbitrators and with the parties
Deliberation before the issuance of the award
Confidentiality
Dissenting opinion motivated
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Good behaviour towards the arbitral institution

New Code-Ad-hoc arbitration and International Arbitration
General procedural rules on incompatibility, challenge, replacement and liability of arbitrators
(articles 562-565)
o Apart from cases of incompatibility provided thereof for judges, arbitrators may be
declared incompatible in specific situations
o Challenge has to be requested within 10 days since the reason for challenge was
acknowledged
Challenge is decided by hearing minute not subject to recourse
All the provisions regarding the challenge of judges procedure are applicable
o Replacement operates in all the cases when the arbitrator has an impediment to fulfil its
mission (challenge, resignation, revocation, abstention, death, others)
Article 1113(1) - the parties enjoy the right to appoint, to dismiss or to replace the arbitrators, in
conformity with their arbitration agreement, or if not specified therein, after their contract in
dispute is concluded, they may decide also by a particular ruling on this matter.
If no agreement on the matter is reached, the parties may request the ordinary competent court
(the tribunal of the jurisdiction where the place of arbitration is located) to decide upon, which
will apply by analogy the provisions of Book IV of the New Code.
the parties should be sure that the provisions of their arbitration agreement on appointing the
arbitrators are in accordance with the New Code
the parties may provide within their rules of arbitration some specific situations which conduct
to the challenge of an arbitrator (Article 1113 (1) and (2)) and which should be compatible with
the rules of the chosen arbitral institution
an arbitrator can be challenged if he does not enjoy of the relevant professional expertise
established by the parties or when the impartiality and independence of the arbitrator is
legitimately doubt
Communications between the parties with regard to the challenge and notice to the arbitral
tribunal regarding the reasons for challenging are imposed by the Romanian procedural law with
no delay
If the parties did not convene on a specific challenge procedure, the arbitral institution is called
to decide over the challenge by a definitive decision
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the effects of the challenge on the continuation of the arbitral proceedings: the ordinary court
ruling indicates that the challenge request does not conduct to the suspending of the court case;
but, the final solution cannot be issued until the challenge request is finally solved by the court
(Article 563 of the New Code)
The standardization of the arbitrator behaviour is not covered by the Romanian procedural law
and remains at the level of ruling of the institutional arbitration although there is no other law
or ruling of any institution indicating the specific ethics imposed to an arbitrator apart from a
general reference made by the New Code to the legitimate doubt regarding the impartiality
and the independence of on arbitrator (Article 1113 (2) (c))
the parties may agree over some specific standards of independence and impartiality to be
imposed to their arbitrators, to the extent the own ruling of the arbitral institution does not
provide otherwise and is not enjoying of an exclusive appliance

Rules on the Organisation and Operation of the Court of International Commercial Arbitration
attached to the Chamber of Commerce and Industry of Romania (the Chart):
The arbitrators are approved by the Governing Board of the National Chamber, being
recommended by its President
Their nomination on the list of arbitrators has to be endorsed by the Court Board.
The removal of an arbitrator from the list of the Court is under the full decision of the Governing
Board of the National Chamber.
The nomination of arbitrators is under the exclusive responsibility of the appointing authority,
designated among the members in plenum of the Court, by resolution of the Governing Board of
the National Chamber, for a renewable 5 years term.
In consultation with the President of the Court, the appointing authority enjoys the power to
select among the full list of arbitrators those to be appointed as chairman of an arbitral tribunal,
considering the declared availability in fulfilling the duties as arbitrator in conformity with the
Court agenda (Article 12 of the Chart).
o The appointing authority is remunerated with a wage of 10% of the value of the
arbitration fee. The procedural rules of the Court are recommended by the President of
the Court and are approved by its board.
o At the present time, the designated appointing authority is the President of the National
Chamber/Vicepresident

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Comments:
The parties should be sure that the provisions of their arbitration agreement on appointing the
arbitrators are compatible with the rules of the chosen arbitral institution.
By choosing an arbitral institution, the parties place the arbitration agreement against the
normative background provided by that institution ruling and they have to realize this situation
before entering into their agreement.
The choice of arbitrators may be considered one of the most sensitive tasks the parties face in
international arbitration, therefore the challenge of arbitrators is seen as a major correcting
institution in favour of the integrity of arbitration.
o It is commonly used that arbitrators may be challenged in case of a conflict of interest
arising before or during the arbitral proceedings, since the mechanism for ensuring the
challenge is subject to the applicable arbitration rules. Methods of challenge vary under
different arbitration laws and rules.
o The independence of the arbitrator is fundamental. Neutrality and impartiality are the
same in both administrated and ad-hoc arbitration

Rules 2013:
The arbitration mission is considered to enjoy of priority towards any other type of professional
occupancy of an arbitrator of the Court
One or three arbitrators may be appointed
Complex or high value cases criteria for deciding about the composition of the arbitral
tribunal
Appointing authority appoints the arbitrators for each determined dispute
Professional training, experience and involvement in the Court activities
Arbitrators to enjoy of an outstanding reputation and of a high qualification and of
professional expertise
Arbitrators and alternate arbitrators
List of arbitrators and list of chairman provided by the Court in a compulsory manner
the current Rules 2013 provides explicitly about a compulsory list of arbitrators
of which the appointing authority enjoy full power in making the selection of
the arbitrators to assume the mission to arbitrate
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Independence and impartiality is not defined
Replacement of arbitratorsrefrain, challenge, dismissal, waiver, death, other reasons
The removal from the list of arbitrators operates in case of breach by the arbitrator of
the obligations related to the mission of arbitration, the Governing Board of the
National Chamber being given the power to decide in this respect, upon the proposal of
the Court Board. In case of severe breach, the Governing Board of the National
Chamber solely could decide upon the removal from the list of the arbitrator.
The removal from the list of arbitrators operates in case of breach by the arbitrator of
the obligations related to the mission of arbitration, the Governing Board of the
National Chamber being given the power to decide in this respect, upon the proposal of
the Court Board. In case of severe breach, the Governing Board of the National
Chamber solely could decide upon the removal from the list of the arbitrator.
for reasons of incompatibility an arbitrator can be suspended by the Court Board
The mission to arbitrate has to be confirmed or refused, in written, explicitly, by the
appointed arbitrator, through a statement of acceptance (Rules 2013, section 5). The
arbitrator is imposed to make a clear commitment to consider of priority the mission
against any other activities. A form of this statement is standardised and attached to the
Rules 2013 in an annex thereto
There is no clear indication within the Rules 2013 of what should represent
incompatibility, apart from what these rules consider to represent incompatibilities
generated by the attorney capacity. Also, an arbitrator can be held liable for damages
caused to the parties in case of dismissal
Impartiality in ad-hoc arbitration excludes the arbitrator to act as a party representative
Comments:
A certain strong discipline is imposed to the arbitrators listed by the Court.
o The arbitration mission is considered to enjoy of priority towards any other type of
professional occupancy of an arbitrator of the Court.
This requested behaviour is not unique in particular in international arbitration,
being expressed the view that good arbitrators must work and have time to
work, and that arbitrators should avoid overbooking and applications for time
extensions due to the constraints imposed by their own agenda.
The capacity of an arbitrator to show as a good professional seems to be
conditioned by his/her availability when accepting and appointment and during
all over the proceedings.
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The mission to arbitrate has to be confirmed or refused, in written, explicitly, by
the appointed arbitrator, through a statement of acceptance (Rules 2013,
section 5). The arbitrator is imposed to make a clear commitment to consider of
priority the mission against any other activities. A form of this statement is
standardised and attached to the Rules 2013 in an annex thereto.
Arbitrators should enjoy of an outstanding reputation and of a high qualification and of
professional expertise. It is noted here the goal of the National Chamber, when organising the
Court, to insure the continuation of the tradition in arbitration based on the notoriety of this
institution, which was founded on one of the best law expertise of its arbitrators.
o On its side, Article 618(1) of the New Code provides as a principle that the lists with
arbitrators are not mandatory; therefore it may be considered that the selection of the
arbitrators from the Court list may not be imposed to the parties. However, the current
Rules 2013 provides explicitly about a compulsory list of arbitrators of which the
appointing authority enjoy full power in making the selection of the arbitrators to
assume the mission to arbitrate .
The removal from the list of arbitrators operates in case of breach by the arbitrator of the
obligations related to the mission of arbitration, the Governing Board of the National Chamber
being given the power to decide in this respect, upon the proposal of the Court Board. In case of
severe breach, the Governing Board of the National Chamber solely could decide upon the
removal from the list of the arbitrator.
The presence of the arbitrators to the sessions in plenum of the Court which take place twice
per year is compulsory and, in case of unjustified absence from two such Court sessions, the
arbitrator can be removed from the list. Penalties of 5% per day of delay are provided by the
Chart in case of failure or delay in fulfilling the obligations of an arbitrator.
Also, for reasons of incompatibility an arbitrator can be suspended by the Court Board.
Replacement of an arbitrator is ordered by the appointing authority and operates in case of
refrain, challenge, dismissal, waiver, death or other impeding reasons. As to the challenge and
refrain regarding an arbitrator, the conditions for applying the two situations are those provided
by the procedural code for ordinary judges. The decision is issued by the arbitral tribunal
without the participation of the involved arbitrator.
As usually in other jurisdictions, the arbitrator has to give a statement and sign it, with regard to
any incompatibility between his mission as arbitrator and other circumstances observed.
However, there is no clear indication within the Rules 2013 of what should represent such
incompatibility, apart from what these rules consider to represent incompatibilities generated
by the attorney capacity.
Also, an arbitrator can be held liable for damages caused to the parties in case of dismissal.
20

B. The set-up of the arbitral tribunal

New Code: article 566 and 559
The arbitral tribunal is considered set-up as of the date when the mission as arbitrator is
accepted in written (declaration of acceptance, Rules 2013)
The date of acceptance is the date of the document communicated to the parties as
representing the acceptance of the mission
o The parties are informed about the mission
The chairman is appointed by the two arbitrators chosen by the parties (article 560)
In case of dispute about the appointment of arbitrators, the interested party may ask the court
to proceed to the appointment(article 561)

Rules 2013: Chapter IV, Sections 4 and 5
Composition of the arbitral tribunal: One or three arbitrators, of whom one is the chairman
Appointment of tribunal: four moments to be considered in order
o Payment of registration fee proof presentation
o Reporting by the arbitral assistant to the Appointing authority
o Appointment by the Appointing authority
o Set-up by signing the declaration of acceptance
Decline of the mission: refusal by the arbitrator to undertake the arbitration
o Followed by a replacement with another arbitrator
Declaration of acceptance
o Special form (special regime)
o Failure to sign: deemed as refusal



21


C. The term of arbitration

The duration of the procedural dispute established for the arbitration in domestic
arbitration is two times the duration for domestic arbitration (New Code, Book IV, Article
1114(4)).
Failure to respect this time limit results in the claim being time-barred, the law provides.
Rules 2013: Section 7
o The award to be issued within maximum 6 months since the date of setting up the
arbitration tribunal(article 42)
o The term may be suspended in some particular circumstances (article 43)
o The term of arbitration may be extended, upon parties express request, all the time
during the dispute, for no more than 3 month period
o delay in settlement of dispute in absence of any justified extension upon the parties
agreement may give effect to sanctions against the arbitrator
o time-barred exception (caducity) should be addressed in written until the first
date in court and should be reiterated at the first date following the expiring
duration of the arbitration; this does not have any effect on the term of
arbitration(article 46)

D. The place (venue) and the language of the arbitration
Place of arbitration
Rules 2013: Section 7, article 47
o The venue of arbitration is at the registered office of the court, as specified in the
Chart (2 Octavian Goga Blvd., 3rd district, Bucharest, ROMANIA)
The language of the arbitration proceedings
o Article 1115 of the New Code repeats the provision stipulated by the procedural law in
Article 570.
First, it is recognized to the parties the right to choose the language to be used
during the arbitration procedure;
22

Second, if the parties do not choose by themselves the language of arbitration,
then the language of the main contract in dispute will apply, such determination
being under the competence of the arbitral tribunal;
The place (venue) and the language of the arbitration
Third, the arbitral tribunal may also opt for a language of international use.
It may be possible that the rules of an arbitral institution provide supplementary
conditions for establishing a language of international use, which should bring
the parties to a prior verification of the own rules of the institution which the
parties would have seen preferable to administrate their dispute.
o Rules 2013: Chapter VI, Article 88
If the venue of arbitration is in Romania, the debates shall take place in
Romanian language, the use of an international language being possible only if
all the arbitrators are foreigners (selected from the approved list of arbitrators
exclusively by the appointing authority) and if they have reached an agreement
in this respect. The debates take place in the presence of an interpreter
appointed
Comments
One could find the provision of Article 88, of the Rules 2013 as limiting the parties initiative to
enter into international arbitration in front of the Court.
o It is true that sometimes matters of local law can be easier understood and applied by
the arbitrators belonging to that local jurisdiction.
o It is also true that the arbitrator is entitled, in particular in international arbitration, to
co-operate with the parties counsel in an interactive arbitration, meaning a
continuous dialogue purported to eliminate the conflicting approaches, and finding
inspiration in national jurisdictions
o If at least one party or a party counsel belongs to a different jurisdiction and/or is not a
native Romanian, the communications in Romanian between the parties and with the
arbitral tribunal may become difficult.
Comments
This will require the service of qualified interpreters which makes the procedure costly and long.
This entitles the appointing authority to make a proper selection of the arbitrators, insuring the
full benefit by the parties of a properly qualified arbitral performance and also gives to the Court
the full responsibility in proposing qualified interpreters.
23

Any improper selection by the appointing authority of a qualified arbitrator and interpreter,
both as to their professional behaviour and his/her language capabilities, as well as the practical
difficulties arisen from imposing the local language rather than give the parties flexibility in
choosing it or consult the parties with respect to the language use during arbitration may lead to
a less efficient arbitration.
The tradition as international arbitral institution gained by the Court during the time may be
diluted.




















24

III. The Arbitration Proceedings(I)
A. The pre-arbitration proceedings. Notice to the Court of Arbitration
B. The conduct of the proceedings. General considerations
C. Compulsory measures

Bibliography:

Arbitration Codex (English version), published by the Court of International Commercial Arbitration,
2013

Court of Arbitration website: www.arbitration.ccir.ro/engleza
Rules 2013 -Chapter IV-Pre-arbitration proceedings; Chapter V-Arbitration Proceedings
New Code:
Book IV, Title IV -Arbitration Proceedings
-Chapter I-Notice to Arbitral Tribunal
-Chapter II-The conduct of the proceedings

NY Convention 58
UNCITRAL Model Law







25


International Standards
The principle of party autonomy in dictating the procedure for arbitration
recognised by NY C 58 (article V.1.(d) and by the UNICTRAL Model Law(article 19(1)
similar approach: ICC, LCIA, AAA
freedom to select either institutional or ad-hoc arbitration
freedom to choose the procedural approach
the selection of a determined institution to administrate or assist in the arbitration is
made by the arbitration agreement following a recommended clause
equality of treatment of the parties during the proceedings
fairness to the parties (UNCITRAL Model law, article 15(1); NY C 58, article V.1.(b))
Limitations to party autonomy principle by the governing law of the place of arbitration
applicable mandatory rules
public policy requirements
The tribunal appointed by the parties determines the procedure for the arbitration
The seat (place) of arbitration is the legal place of arbitration
physical change of location does not mean a change of the legal place of arbitration
link between the arbitration and the law of the place of arbitration
nexus of contractual and procedural rights and obligations between the parties and the
arbitrators
Preliminary meetings of parties representatives; specific matters to be determined
during the preliminary meetings; Arbitrators directions
Preliminary issues: jurisdiction; governing law of the proceedings and substantive law;
liability and quantum/written submissions and written pleadings; parties encouraged to
agree on the issues to be heard
The law of the place of arbitration = lex arbitri
supervises the arbitration proceedings of a particular institution located in the
jurisdiction of the place of arbitration
26

determines the framework of the arbitration mission
the parties/the arbitrators may derogate from or may amend lex arbitri if provisions
contained therein are of a suppletive nature
contains limitations to arbitration: arbitrable matters, time-limits (status of limitation),
interim measures for protection, administration of evidence, duty of documents
disclosure, powers of an arbitrator, the award (form and validity, challenge)
Sometimes the law of the place of arbitration (lex situs)may play as well the role
of the governing law on the substantive aspects of the matter
The law governing the merits of a dispute
Can be chosen by the parties by their agreement-basic principle= lex contractus
Important aspect in international arbitration
Determination of the law governing the merits is made by the arbitrators
Determination of governing law on the merits intervenes when the parties did
not make their own choice of law
International arbitrator does not justice in the name of any State
Substantive law determined in conformity with the arbitration law (Lex arbitri)
Such determination has to consider also any limitations introduced by Lex arbitri
The arbitrator is called to give effect to parties intention
Usually, can be determined as the law governing the contract where the arbitration clause is
contained
Could be any of the following laws, determined by simple designation by the parties
Lex voluntatis
National law of a particular jurisdiction
International conventions
Conflicts of law method
UNCITRAL ML, article 28(2)-recognition of principle
International private law rules
Direct Method of substantive applicable law determination
27

Maximum freedom recognised to the arbitrator
Contract closest connection with a particular law/jurisdiction
Determination of substantive law considering the entire contractual provisions and the
trade usages
In determining the substantive law, the arbitrators have to insure rendering an
enforceable award, without denying the effects/limitations of public policy and
mandatory rules
***

A. Pre-arbitral proceedings. Notice to the Court
New Code:
Book IV, Title IV -Arbitration Proceedings
-Chapter I-Notice to Arbitral Tribunal
-Chapter II-The conduct of the proceedings
Title VII-article 619-Arbitration rules(institutional arbitration)

Rules 2013:
Pre-arbitral proceedings
Chapter IV, Section 1 and Section 2
First procedural step: request for arbitration/claimant=arbitration claim
Rules 2013: Compulsory elements of the arbitration claim similar to New Code (article 571)
Identification data of the party claimant, including address for service and its
representative attorney
Matter and value/method for value determination
Factual and legal grounds to support the claim/s
Evidences presentation
Arbitration agreement (in written from)
28

Signatures
Translation in Romanian provided by the party (claim, documents)
Romanian language compulsory
Copies to arbitrators in electronic format
Second step: Registration of claim
Claim and arbitration fee proof/Court of Arbitration Secretarial Office
Preparation of proceedings by an arbitral assistant
Registration in person or by mail
Due payment of registration fee is compulsory for claim registration
In case of non-fulfilment of this duty-no registration operates (inactive claim)
Third step: Communications by arbitration assistant with the parties/Notification Deed,
claim, Codex, documents (vs. New Code-article 572-communication by the claimant)
Rules 2013:
Notification Deed: act of communication between the institution and the parties in arbitration
To Claimant: Missing elements of the claim, financial obligations, evidence to be submitted
To Respondent: claim, copies of documents, details regarding the obligation to provide a
position towards the claim, by a reply to the claim, compulsory data for the reply, details
regarding evidences
Absence of a reply does not mean recognition of claimants claim
Multiparty position (more than one claimant or respondent): each may express its own
position
Fourth step: Counter claim/respondent: if under the same relationship
May be settled separately
Subject to the same conditions as the arbitration claim
Subject to arbitration fees to be paid within 10 days from the Notification date of such payment
made by the Court

29

Fifth step: Payment of arbitration fees
Within 10 days since the Notification deed is communicated
Extension possible in special circumstances
Sixth step: Setting the hearing date

Rules 2013:
Within 3 days since the date of setting up the tribunal and no less than 21 days from the
subpoena date of communication
15 days-New Code
Constitution of the arbitral tribunal is performed by the arbitral institution
Communications with the parties by arbitral assistant prior to the first date in Court (no less
than 5 days before this date)
Service of process: any modality to insure both communication and confirmation-registered
letter, official receiver, courier, email, fax, telex, overnight courier
For phones: notice of calls
Proof of delivery-receipt
Change of address to be communicated to the Court
Services of process by public means
Foreign parties: address for service in Romania compulsory or by registered letter in
case of failure to provide this address
Procedural deeds to be provided in Romanian and in an international language
Procedural Terms provided by the Rules 2013: non-respect-extinction of procedural
rights (see also Book I, Title V)




30

B. Conduct of the proceedings
New Code:
Hearings take place following the rules established by the parties in the arbitration agreement
(article 575 and 576)
o Or the parties may agree that the arbitrators determine the rules of arbitration (which
can be completed with the New Code Rules)
For institutional arbitration, article 619(3) will apply:
o Unless the parties agreed otherwise, the dispute shall be governed by the procedural
rules of the arbitral institution in force at the time when the institution was seized
(noticed)
o Also, article 619 (2) will produce effects:
Designation of the Court of Arbitration automatically means that the parties will
be submitted to its procedural rules
Verification of competence (following competence-competence principle) by the arbitral
tribunal(article 579)
o By hearing minute-if declared competent
No challenge in court by separate way, only together with award (article 608)
New Code:
o By decision-if declared non-competent
No challenge in court of the decision
o Rules 2013, article 49: identical approach
Third party participation accepted, subject to the agreement of both parties and with their own
agreement(article 581)
The hearings and the debates may take place in the absence of the parties subject to express
request of the relevant party(article 583); Rules 2013, article 56(3)
Dispute may be solved in the absence of either party if they were notified to Court in due
manner(article 584)
o The arbitrators decide regarding the postponement at their full discretion and also may
call the parties to debates if they consider this necessary
31

Conservative and provisional measures (articles 585 and 547)
o Proceedings confirmed by the Rules 2013, Section 6
o Competent court of law: the Bucharest Tribunal, acting as a fist instance court
New Code:
o Urgent procedure
o Decision not subject to recourse
o Object: factual aspects, provisory measures
o Before or during the arbitration proceedings
During the arbitration proceedings the arbitration tribunal may also decide over
these measures
Enforcement with court of law support, in case of opposition to
enforcement
Evidence legal regime
o Burden of proof (article 586)
Written explanations to be provided upon the arbitrators request
Admissibility of evidence only if were referred by the claim/counter claim
o Administration of evidence (article 588)
Exclusive role of the arbitrators over the evidence administration
No constraints or sanctions applied against the parties to provide evidence
o Information from public authorities may be ordered
o Evaluation of evidence at the arbitrators own judgement

Rules 2013: Chapter V (Arbitration proceedings)
First date in court: same meaning as prescribed by the general principles of the New Code
Special administrative measures taken at the first date in court (article 48/4)
Conduct of the debates by the chairman; sessions rules(article 51); obligations of the assistant
(article 50/2)
32

Speedy process (article 53)
Proceedings administrated in written form (article 52)
No subpoena if at least one time a party was present or represented during the debates(article
54)
Change of date is exceptional (article 55); delays may be decided by sole member of the panel
(56/2)
Other parties than the parties in dispute cannot participate to the arbitration unless approved
by the parties and by the arbitrators(article 58/2)
Parties can attend the sessions in persona or by representative(article 58/1)
Minutes of hearing: registration of debates; grounds of tribunal decisions included; compulsory
form of the minute; right of the parties to acknowledge the content of the minutes and of the
arbitration file; correction of clerical errors by request of the parties or ex officio (article 59)
Exceptional circumstances when minutes can be challenged separately with an action in
cancellation for grounds provided by the New Code(article 59/7)


C. Compulsory measures
during the pre-arbitration or the arbitration proceedings (Rules 2013, Chapter IV, Section 6)
Any party may ask to the competent court of law to decide over conservatory and interim-
measures related to the dispute matter or regarding factual aspects of the case (seizure of
goods-Book VI, Title IV; evidences-Book II, article 364)
The court /arbitration tribunal decides by minute, in conformity with the New Code rules (article
585)
Article 585 of the New Code:
The arbitral tribunal may also provide such measures; Rules 2013 provides
about this option only during the arbitration proceedings, not during the pre-
arbitration proceedings (article 41/1)
The competent court is the
Enforcement of these measures: with the court intervention(New Code, Article 585/4;
Rules 2013, article 41/2)
33

The procedure is urgent (New Code-Book VI, Title VI, Emergency proceedings)

International Standards:
The right to request appliance of interim measure of protection recognized by UNCITRAL
ML, articles 17, 26
NYC 58 does not cover interim measures enforcement if issued by minute of hearing by
the arbitral tribunal; only if issued by arbitral award; if not issued by award,
enforcement is possible by court intervention
Domestic law applies and court intervention is recognised (limitation of effects
of lex voluntatis of the arbitration agreement)
Measures which can be taken in interim legal regime are determined by lex fori
Courts take interim measure in accordance with their domestic law















34

IV. The Arbitration Proceedings (II)
A. The Evidences
B. Requests and exceptions
C. The minutes of the hearing
D. Arbitration expenses

Bibliography:
Arbitration Codex (English version), published by the Court of International Commercial Arbitration,
2013
Court of Arbitration website: www.arbitration.ccir.ro/engleza
Rules 2013 -Chapter V-Arbitration Proceedings
New Code:
Book IV, Title IV -Arbitration Proceedings
-Chapter II-The conduct of the proceedings
-Chapter III-Arbitration Expenses
Book VII-
UNCITRAL Model Law
Presentation notes








35


International Standards
The principle of party autonomy in dictating the procedure for arbitration
recognised by NY C 58 (article V.1.(d) and by the UNICTRAL Model Law(article 19(1)
fairness to the parties (UNCITRAL Model law, article 15(1); NY C 58, article V.1.(b))
Limitations to party autonomy principle by the governing law of the place of arbitration
The tribunal appointed by the parties determines the procedure for the arbitration
The seat (place) of arbitration is the legal place of arbitration
Lex arbitri=the law of the place of arbitration
The law governing the merits of a dispute: lex voluntatis/lex arbitri/lex fori
****

A. The Evidences
New Code: articles 587-591; article 619; article 1117 (international arbitration)
Burden of proof : article 586
o Each party has the burden of proof for making the evidence regarding the facts which
represent the basis of its claim/defence
o Written explanations could be requested from the parties by the arbitration tribunal
regarding the factual aspects and the subject matter of the dispute;
o The arbitration tribunal may order ex officio the administration of any evidence
provided by the law
New Code-Book II-Subsection 3/Evidences-cross examination, witnesses,
expertise, written documents etc.
Proposal of evidences: article 587
o Rule: Request for evidences has to be addressed by the arbitration claim/claimant or by
the defence paper/defendant (claim, counter claim)
Exceptions to the rule of presenting the evidences are provided by article 254/2
of the New Code
36

The necessity of a particular proof results from debates
The analyse of the case by the arbitrators during the arbitration
proceedings reveals factual aspects which could not be observed by the
party when registering the claim/defence
Justified reasons for impossibility to present a specified proof
The administration of evidence does not conduct to the delay of the
case
Both parties agrees expressly to administrate the evidences
Article 254/2: the opposite party may ask for evidence limited to the factual aspects forming the
object of the proof administrated under conditions of article 254/2
o The arbitration tribunal enjoys of exclusive competence to decide over the administration of
proofs-useful, relevant and conclusive evidence
consult the parties for establishing a time limit for the administration of evidence
after expiration of such time-limits, evidences are administrated only upon the tribunal
appreciation by founding a specified evidence essential for solving the dispute
Administration of evidence: articles 588 -590
o In front of the arbitration tribunal (chairman or, upon the parties agreement, before one
member of the panel)
o The tribunal may order the presentation of the evidence held by one party if so proved
o Experts and witnesses are heard under no oath obligation; they may be asked by the tribunal to
answer in written to questions addressed by the arbitration tribunal
o no sanctions can be applied against experts/witnesses by the arbitration tribunal
such measures can be imposed by the court of law in conformity with article 547 (tribunal of the
place of arbitration judging as a first instance court of law); priority and emergency in
conducting such procedures; no recourse admitted by law against decisions ordered by the
court of law
o information held by public authorities: can be requested officially, in the circumstances provided
by article 298/2 (when the public authority is proved to hold it);
in case of refuse to present the evidence-either parties or the arbitrator may request the court
of law of the place of arbitration to order the presentation of the proofs (article 298/1)
37

Arbitrators are free to appreciate over the evidences, judging if the proposed proofs are indeed
relevant and conclusive in the dispute: article 591
The rules of the arbitral institution with respect of the proposal and the administration of
evidences will prevail towards the principles of the New Code; articles 619/2; 619/3
International arbitration/New Code:
The fundamental principles of the Book IV are repeated: article 1117-administration of
evidences
The arbitration tribunal administrates the evidences
If the courts of law intervention is needed, either the parties, or the arbitration
tribunal, but with the parties consent, may request the court of law of the place
of arbitration to intervene, in conformity with lex situs (lex fori)
Rules 2013
Burden of proof: (Chapter V, Section 2 article 60/1 and 60/2)-identical approach as the New
Code (article 586)
Evidence appreciation: (Chapter V, Section 2 article 60/3)-identical approach as the New Code
(article 591)
Proposal of evidence: Chapter V, Section 2 article 64/2-in combination with article 64/1
o Evidences should be proposed until the first date of arbitration of the dispute with the
diligence of the arbitration assistant
o Admittance of evidence after this date only if necessity of the proof results from the
debates; there is no delay of the arbitration proceedings involved
In consideration of article 619/2 of the New Code, of article 17 of the Chart
(organisation and functioning of the Court of Arbitration) and of article 1 of the
Rules 2013: exceptions provided by the New Code under article 254/2 are
limited to the circumstances confirmed by the Rules?





38

B. Requests and exceptions
New Code: article 592
All requests regarding the existence and the validity of the arbitration agreement, the
constitution of the arbitral tribunal, the limits of the powers of the arbitrators and the
performance of the proceedings until the first date for arbitration has been established-parties
dully summoned for that date
o must be addressed until that date; sanction: the party loose the exercise of the right to
make such request; a shorter term maybe also established by the arbitration tribunal in
such respect
All requests and written documents-requested until the first date for arbitration
o Term-limits may be established by the arbitration tribunal with parties consultation
o Requests admitted only if considered essential for solving the dispute
(Article 587 New Code applies)
Any procedural irregularity may be covered if not claimed until the first date for arbitration
o Procedural irregularities to be invoked at the date when they were produced
o If the party was absent at that date, request for irregularity to be addressed no later
than the first date in court
The party has to be present or duly summoned for that date
In any case, a request of irregularity may be claimed until the last pleading
Rules 2013:
Article 61: exceptions regarding the arbitration agreement and the setting of the arbitration
tribunal-same approach as article 592 of the New Code
Until the first date for arbitration, in express manner, under sanction of waiver of right
to make such requests
Article 62: exceptions regarding aspects of public policy may be addressed any time during the
proceedings
The non-competence of the arbitration tribunal may not be requested after
registration of the defence by the defendant and if not included in the defence paper
Article 63: The non-constitutionality of laws and orders (ordonante) may be claimed any
time during the proceedings by either party or ex officio by the arbitration tribunal, in
39

conformity with the Constitutional Court Law (articles 29-31 of section 5-Law 47/1992,
republished in 2010); minute of hearing is issued, subject to recourse
Article 64: Any other request, memoranda or documents: until the first date for arbitration


C. The minutes of the hearing
New Code: articles 593 and 594
Debates are recorded in the minutes
Decisions adopted by the arbitration tribunal have to be grounded and included in the minutes
Minutes have to be issued respecting a compulsory content (see also article 603/1/a) and b))
o Description of the debates, parties requests and allegations, grounds of requests,
grounds of decisions adopted, orders of tribunal, signatures of arbitrators;
o Decisions are taken by majority of arbitrators (see also article 602/3)
The term for issuing a decision is limited to 21 days (but it should respect the term of the
arbitration)-see also article 603/2
Parties have access to the file and its minutes
Minutes may be corrected / completed upon parties request by issuing another minute in this
respect
Parties can be given copies of the minutes
Challenge of the minutes by action for cancellation for the following reasons provided by the
New Code:
o Suspension of arbitration (by law or for optional grounds)(articles 412 and 413)
o In case of interim measures for protection (article 585)
o Reject of non-constitutionality claim as inadmissible
Cancellation of minutes take place in the same circumstances provided for the awards(article
608-613)
o In case the minutes are issued for taking interim measures for protection and for
deciding over the non-constitutionality claim-the action in cancellation does not
suspend the arbitration proceedings
40

o The term of registering an action for cancellation of a minute is of 5 days since its
communication
If the proceedings are suspended (by law or for optional grounds), the action in
cancellation can be registered at any time during the suspension period
o The court of appeal solves the action in cancellation of a minute; its decision is definitive; the
measures adopted by the arbitration tribunal may be preserved, modified or rejected.
Rules 2013: article 59
The approach is similar to the New Code (articles 593 and 594)
o the role of the arbitration assistant is provided
o signing of the minute; support to the communication of the minute to the parties
The principles provided by article 1120 (international arbitration) regarding the award may
apply also to the minutes


D. Arbitration expenses
New Code:
Book IV, Chapter III
Content of expenses/charge: article 595/1
o Organising and performance of arbitration, arbitrators fee, administration of evidences,
transportation of parties, witnesses, experts, arbitrators
o Supported in conformity with the parties agreement
o In the absence of an agreement: by the losing party or in proportion with the results of
the dispute
Parties may be obliged to an equal contribution to the payment of arbitrators fee
Payment in advance of necessary expenses may be ordered by the arbitrators/may be
conditional for starting the arbitration proceedings
Expenses may be verified by the court of law upon the parties request if well-grounded or not
the arbitrators disposition in that respect; minute of the court of law not subject to recourse
Payment of arbitrators fee: after communication of the award to the parties
41

All arbitration expenses have to be paid until the communication of the award
Article 1121: in international arbitration, each party shall take under its charge the arbitrators
remuneration and their transportation expenses; for the sole arbitrator and for the chairman,
these charges shall be paid in equal parts
Rules 2013: Chapter IV, section 3
Article 35: definition of arbitration expenses includes also the registration tax and to
administrative/arbitral tax; the rest of the definition is in compliance with the article 595/1 of
the New Code
Administrative tax and registration tax are differently supported in institutional arbitration and
in ad-hoc arbitration: article 36
Parties agree upon the modality of payment of the arbitration fees and expenses; in absence of
agreement, the general principal of the New Code will apply(595)
Connection to the Chart:
o article 14 of the Chart-financial resources of the Court-arbitration tax and registration
tax/established by the governing body of the National Chamber(Colegiul de Conducere
al Camerei Nationale), upon the proposal of the Court Board (Colegiul Curtii)
the appointing authority receives 10% of the arbitration fee
10% of the arbitrators fees are paid in the Court fund for covering the expenses
of the Court and for payment of the members of the Colegiul Curtii, of the
arbitration assistants and of the Appointing Authority









42

V. The Arbitral Award
A. Deliberation and issuance of the award
B. Content of the award
C. Correction and completion of an award
D. Character and enforcement of the award

A. Deliberation and issuance of the award
International Standard

Deliberation require determination of the applicable law to the merits of the dispute
o Giving effect to parties intention by the arbitrators is fundamental(parties choice of law)
The arbitral tribunal shall apply the law chosen by the parties or if not chosen, will
decide that the law or the legal system of a given State shall be referring to the
substantive law of that State (and not to the conflict of laws rule)-UNICTRAL ML,
article 28(1)
Parties are free to determine by the arbitration agreement the law which the
arbitrators are requested to apply to the substance of their dispute-ECICA
1961(Geneva Convention)-Article VII
Transnational law (general principles of law, common legal principles,
international law, trade usages)or lex mercatoria
Lex voluntatis is established since the conclusion of the contract containing the
arbitration clause or it may be modified by the parties when the dispute arises
Parties may present at the beginning of the arbitration their position regarding
the applicable law/their intention regarding the applicable law may arise from
exchange of written submissions
Interpretation by arbitrators of the will of the parties by looking to the contract
Reference to a national law, to a convention, to non-State rules (UNIDROIT principles),
combination of rules (complex cases)
Implied intention (link which may be determined by the arbitrators as being desired
by the parties to have between the contract and the rules of a particular legal system)
43

Amiable compositeur/ad-hoc: no strict legal reasoning should be expressly authorised by the
parties; arbitrator can apply the law considered featured to the dispute (contract); ex aequo et
bono-judgement in equity, ignoring the rule of law.
o Absence of choice made by the parties and application of conflict of law rules
Conflicts of law method/connecting factor: place of performance, habitual residence, place of
incorporation, combinations of factors
General principles of private international law
Formal aspects related to contract/locus regit actum
Direct method: maximum freedom of the arbitrator/searching appropriate rules (the law of a
state, an international convention, lex mercatoria)
o Contractual stipulations and trade usages have to be observed
o Consideration of International public policy and of mandatory rules of law in
international commercial arbitration
Final award
o Content
o Written and signed
o Place and date
o Reasons
o Remedies
o Costs
o Time limits for issuance
o Deliberation: Secrecy; Majority and unanimity/dissenting opinion
o Notification to the parties
New Code:
Article 601 and article 5
o Arbitral award=Solution adopted in conformity with the mutual agreement of the parties, if the
dispute is arbitrable, applying the substantive law , the usages, the law by analogy, or the
general principles of law (CPC-art.5-fundamental principles of a civil dispute)
44


New Code: Article 602-deliberation and issuance of the decision
o Secrecy of deliberation (as per the arbitration agreement or as per what the tribunal decides)
o Delay of award issuance: 21 days maximum, considering the term of arbitration
o Majority of votes
o Minute of final debates is compulsory (the disposition in brief and the dissenting opinion, if the
case may be)
o Time limit of arbitration/deadline for issuing the award: 6 months/international arbitration-12
m/since the setting up of the tribunal/sanction-termination of arbitration; extension of time-
limit-once (9 months maximum)

Article 1119-International arbitration:
o Issuance of the award in conformity with parties agreement/or the majority of the votes;
chairman vote prevails
o In written, grounded, dated and signed by all arbitrators
o Partial awards admitted
o The awards is binding and final; subject to restricted conditions for action in cancellation(see
Book IV, Title V)

Rules 2013: articles 66, 67, 68, 69, 70
Issuance of the award represents the end of the arbitration proceedings
Partial award: when part of the claim is recognised by the respondent
Waiver of claim before setting up the tribunal:
o resolution/President of the Court/or PrimeVP and report of assistant
o After setting up the tribunal: award
o Settlement of dispute: based on applicable law and on evidences, also on commercial
practice (usages)
o In equity: based on parties express agreement
45

o Arbitrators-independent and impartial in issuing the decision
After final debates follows the deliberation and the passing of the award
Postponement of issuing the award: 21 days/but with respect of time limit of arbitration
Majority of votes
Minute of deliberation/award: hand written by chairman (disposition taken by the tribunal) and
applied on the back of the first page of the file; signed by arbitrators
Registration of the minutes in the book of arbitration hearings the same day of
deliberations/dissenting opinion
New clarifications from the parties: minutes of hearing/resuming the case for additional
debates/with respect of the term of arbitration

B. Content of the award
Mandatory content: New Code art.603
Written form
References to names, residence, head office, legal representatives/parties, other participants
Arbitrators, place and date of the award;
Indication of the arbitration agreement
Subject matter in dispute and parties allegations
Factual and legal grounds of the dispute-institutional/reasoning-ad-hoc
Disposition
Signatures of all arbitrators/arbitration assistant
Dissenting opinion-signed and grounded
Special procedure for real estate rights disputes: presentation of the award to court of
law/public notary for getting a court of law decision/notary act; registration in the land book
Communication officially to parties: 1 month maximum; extension by Court of Arbitration-30
days
Deposit of arbitration file at the court of law/tribunal
46


Rules 2013: same provisions as New Code-article 603
Article 71
Special provisions: impediment in signing the awards-confirmation by chairman/PVP of the
Court and signature


C. Correction and completion of an award
Rules 2013-articles 72-75
Clerical errors
Clarification of disposition
Supplement

New Code: article 604-clarification/correction/completion
Clarification: understanding, scope and application of the award/disposition; contrary
dispositions
Completion: omission of a claim, of an incidental/connected claim
10 days since the communication date/separate award/parties summoning
Clerical errors: no substantive part affected; arithmetical errors; resolved by minute; upon
parties request/ex officio; summoning
Minute and clarification award forming integral part of the award
Parties may not being obliged to expenses related to the clarification/completion/correction
decision




47

D. Character and enforcement of the award
E.
Award produces full effects as any court of law decision which is final and binding
Cancellation (New Code-Title V)
Cancellation of the award is exceptional: in conformity with the New Code (article 608)
The right to register an action for cancellation cannot be waived by arbitration agreement; only after
the award issuance
Term limit for registration of an action for cancellation: One month since the notification of
the award/if not exercised such right-estoppel

Reasons for cancellation (article 606 New Code)
Non-arbitrable dispute
Dispute settlement with no arbitration agreement/or if the arbitration agreement is null and
void
Arbitration tribunal not set up in conformity with the AA
The party absent at the last pleading debate was not duly summoned
Award issued after expiration of term limit for arbitration (567 New Code); just one party has
claimed the time bear exception; parties not agreeing to continue the dispute settlement

Cancellation (New Code-Title V) - continuation
The tribunal has issued the award on matters which were not claimed or over the claim
Award does not contain the reasoning and the disposition, does not mention the date and place
of arbitration and is not signed by arbitrators
Award violating the public policy, the good moral or mandatory rules of law
Solution issued by the Constitutional Court after the issuance of the award on matters of law
part of law of the dispute
No irregularity could be claimed if not invoked until the first date in court or which
cannot be repaired by way of clarification, completion or correction procedure of the
award (article 604 New Code)
48

Admissible evidence in action for cancellation: only written documents

Important: New Code-articles 609-613
Waiver of right to register an action for cancellation: same concept as the Rules 2013 (no right
to waive by AA; only after the issuance of the award)
Competent court of law to solve the action for cancellation: court of appeal of the situs (place of
arbitration) : CICA-Court of Appeal Bucharest
Defence paper is compulsory
Solutions:
Sending the dispute to a competent court
Non arbitrable dispute, absence of or invalid AA, award issued over the term
Sending to the arbitration tribunal, if at least one party does claim this;
otherwise, retain for judgement the case and decide within the limits of the AA
and may order new evidences; first, the award on cancellation; second, the
award on the substance of the dispute; judgement on equity if parties agreed so
decision of court of law subject to recourse
Term for registration: one month (since the communication-of the award/minute-upon the
circumstances)
3 months in case of grounds based upon non-constitutionality procedure
Enforcement
(Title VI, New Code)
Rules 2013: articles 78-82

Character: final and binding
Parties shall be provided with the arbitral award by the arbitral assistant within 3 days from the
drafting date
Same effects as a court of law decision
49

The award represents a title for enforcement; enforcement is similar with a court of law
decision
Enforcement by officer similar to the enforcement of a court of law decision-Book V, Chapter IV
Voluntary enforcement or by officer
Award enforcement can be suspended during the action for cancellation by the court of law




Recommended supplementary bibliography:
Ion Deleanu, Valentin Mitea, Sergiu Deleanu, Tratat de procedura civila, vol.III, Noul Cod de
Procedura Civila, 2013, Universul Juridic (Procesul civil International. Arbitrajul international)
Radu Bogdan Bobei, Commercial Arbitration-Elementary Handbook on Scholarly Pragmatism,
C.H.Beck, 2014
Eric E. Bergsten, Dispute Settlement, International Commercial Arbitration, UN 2005
(www.unctad.org)