7 key steps during an International arbitration in Romania

Oglinda & Partners | View firm profile

  1. Writing phase: Request for Arbitration and Answer
    • Request for arbitration:

Art. 10 of the Romanian Rules of Arbitration defines the Request for Arbitration as a brief document whose purpose is to announce the existence of the dispute by a narrow description of the conflict, indicating the identity of the parties, the claims and the proof of the arbitration clause to show the Court’s competence.

  • Answer:

Art. 14 of the Bucharest Arbitration Court Rules provides the Answer shall be submitted only after the arbitral fee was paid.

Through the Answer, the Respondent must invoke any objection regarding the validity of the arbitration clause and the Court’s competence or the request for a third-party participation. Also, the answer must contain the Respondent’s proposal regarding the place and the language of arbitration, the number of arbitrators and the appointment of the Respondent’s arbitrator.

On the merits, in the same manner as the Request, the Answer contains a summary of the main facts and arguments in defence.

Any Respondent’s counterclaim must be submitted simultaneously with the Answer.

  1. Tribunal’s appointment

Bucharest Court of Arbitration provides for a List system, therefore the parties must choose an arbitrator from the Arbitral institution’s list. Usually, tribunals consist of one or three arbitrators.

The will of the parties prevails, therefore the parties are free to agree the number and the identity of the arbitrators.

In case of a sole arbitrator tribunal, if the parties fail to reach an agreement, then the Bucharest Court of Arbitration shall appoint the arbitrator. In case of a three arbitrators Tribunal, each party shall appoint one and, if the parties do not agree on the Chairman arbitrator, then the two party-appointed arbitrators shall choose the Chairman or, in case of the party-appointed arbitrators fail to reach an agreement, the Chairman shall be designated by the Court.

  1. Case management conference

This is an online held video-conference whose goal is establishing a procedural timetable consisting of allocating precise dates for all future actions of the parties or of the Tribunal like: the submission of documents or procedural orders.

The conference marks the last moment when parties can modify their claims, invoke additional objections and request complex evidence. There are some exceptions from this forfeiture term.

At the conference, it must also be decided if a bifurcation of the procedure may optimise costs and efficiency of the process, meaning if the arbitral is going to render partial awards, during the procedure, on some aspect of the disputes. The most common example is: (1) partial award on liability and (2) final award on the extent of the damage.

  1. Full statement of Claim and Full statement of Counterclaim

This is the second and the largest written submission of the parties. By the full statement, both parties detail in a comprehensive manner the claims, the arguments and the facts that were briefly showed in the Request or in the Answer. Also, the full statements are the final moment when the parties must reveal all supporting evidence, all requests for complex evidence and documents production.

  1. Evidence administration

In practice, under Romanian Rules of Arbitration and, in addition, under the Romanian Civil Procedure Code, the complex evidence used are expert reports and witness testimony. These two types of evidence can be administrated only in writing and only by exception, at the request of a party or at the Tribunal’s decision, witnesses and experts will be summoned, examined and crossed-examined. The experts are chosen from a list of authorized experts of the Romanian Ministry of Justice. In case of a highly specialised nature of the dispute, the Tribunal can appoint specialists outside of the Ministry’s list.

Bucharest Rules of Arbitration also provide the possibility for the Tribunal to rule in favour of a request of production of document request.

  1. Hearings

The main distinction between Romanian Rules of Arbitration and other International Arbitration Rules arises regarding how the hearings are held. The Romanian Rules involves hearing in a very short period of time, respectively in one day, which translates into important savings in matter of time and, by default, costs. Bucharest Court of Arbitration also provides the conference room, whose cost is included in the arbitral fee, therefore, costs with accommodation or conference room are avoided.

During hearing, it is mandatory to have closing statements, meanwhile the rest of the moments can be bypassed (opening statements; witness and experts’ examination) and the evidence would be asset only through written form (expert report and witness testimony). At the request of at least one of the party or at the Tribunal disposal, also the other moments may be carried out.

  1. Post hearing briefs

Romanian Rules of Arbitration, as in any other matters regarding the arbitral proceedings, does not expressly regulate the moment in time or the content of the Briefs, reason why Romanian Civil procedure Code applies in addition to the Rules, meaning art. 394 par. 3 and art. 244 par. 2.

Post hearing briefs are a summary of the entire arbitral process, resuming the key information needed by the arbitrators in order to pronounce a fair solution after written depositions, evidence administration and hearing.

Attorney-at-Law Eugen Sârbu

More from Oglinda & Partners