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JANUARY 2013
Legal Focus
Romanian language, foreign participants and foreign arbitrators being given the support of a translator, by their own expense; only exceptionally, under specific conditions, foreign languages in arbitration are permitted.
How will these changes affect the arbitration scene in your jurisdiction?
If we consider the arbitration to take place in an institutional form (e.g., in front of the International Court of Arbitration attached to the National Chamber of Commerce), the parties will not enjoy any freedom in choosing their arbitrators, since in ad-hoc arbitration this option will continue to produce effects. Also, the rule of using almost exclusively the Romanian language during the procedure and only exceptionally a foreign language, may limit the interest of the parties in a potential international arbitration to address their dispute to this arbitral institution; however, still they can appeal to ad-hoc arbitration, which recognize them more freedom in solving their dispute as in the case of the institutional arbitration. As a conclusion, the immediate impact of these modifications relate to international disputes, where the parties are used to be recognized their agreed approach to the settlement by arbitration of their potential conflicts, as this happens usually in other international arbitration systems. Instead, under the current Romanian court of arbitration rules, they are not given the same level of importance to their various choices included in an arbitral convention.
What, in your opinion, are the advantages of arbitration as a dispute resolution method as opposed to court action?
The main advantage of arbitration towards court action consists in offering to the disputing parties a much shorter duration of the procedure, a more selective portfolio of evidence to be administrated, a more specialized approach on the subject matter in dispute; to this, a particular advantage is the confidentiality of the case, including the exclusion of the final arbitral award from any publicity.
do laws and regulations differ for domestic companies as opposed to foreign companies?
In international arbitration disputes, apart from the Rules contained by the civil procedure code (Book IV) and the own rules of the International Court of Arbitration attached to the National Chamber, there are applied few international conventions to which Romania is party - Geneva, 1961 and UNCITRAL. Also, the duration of the procedure for solving an international dispute is double compared to a domestic arbitral dispute (ten months, instead of five months). The members of the panel are appointed by “the authority of nomination” among foreign arbitrators from the list previously approved by the president of the National Chamber and the board (“colegiu”) of
cristiana Stoica, Ph.d, Founding Partner Stoica & asociatii - attoRnEYS at LaW opera center II, Str. dr. n. Staicovici nr. 2, et. 2, 050558, Bucuresti
office : +40 (0) 21.40.20.930 Fax: +40 (0) 21.40.20.931
direct : +40 (0) 21.40.20.919 Fax: +40 (0) 21.52.70.920
E-mail: istoica@stoica-asociatii.ro
the court. Also, the presence of a translator appointed by the arbitral tribunal is compulsory.
How do you assist clients involved in arbitration? Is there any general advice you could offer clients to prevent the situation from escalating?
The best is to prevent any dispute, so that generally clients are advised to choose the right way to solve their potential conflicts when occurred. Where appropriate, arbitration is proposed to them and in this respect attention is paid to the drafting of a convention of arbitration in light with the arbitral institution own rules where the potential dispute is supposed to be addressed.
do you foresee the need for legislative change in 2013, if so why?
The Romanian civil procedure code is expected to start to apply as soon as possible. This instrument is very useful for conducting the disputes to take place in front of Romanian courts of law in a more appropriate manner, at international standards. Also, this new instrument will support the arbitration proceedings. However, these new rulings will need a particular involvement of the Romanian law institutions, in particular the courts of law, to insure proper implementation. Until this change occurs, there is a good advantage for arbitration to increase its role and gain more place as it has now, as an alternative to ordinary court proceedings. LM
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