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Arbitration

Arbitration

Arbitration is the alternative dispute resolution method such as mediation. In Romania this branch of law is not so used. In front of a regular court this is a private law jurisdiction that enjoys the supervision and control of the state.

Not all arbitration can be solved in arbitration, such as: criminal cases or for which according to the law it cannot be traded, non-patrimonial rights or which a person cannot have, civil status applications and successions. We can assist you and represent you in arbitration disputes or we offer you specialized legal advice.

The advantage of this procedure is the shorter duration, the costs are lower, and the arbitrators have few causes and have more time to award each case. The arbitral decision is final. In particular, this mode of dispute settlement between companies is used. (commercial PhD).

Arbitration clause

In order to enter into the jurisdiction of the arbitration a dispute, there must be an arbitration clause. The clause may be included in a paragraph of a contract or it may be a separate contract between the parties. Written form is required.

The arbitration clause may be concluded before or after the dispute arises. It follows from this condition that there must be an agreement of both parties to settle the case in the arbitral tribunal.

The arbitration clause may establish the manner of formation of the arbitral tribunal, the election of the arbitrators, the applicable law, in compliance with the rules of public order.

The existence of the arbitration clause excludes the possibility of settling the dispute in another court without the agreement of both parties.

The arbitral tribunal

It can be formed ad-hoc or established in the arbitration clause or at least chosen the way it will be formed. Serum establishes the place, the way of organization and the referees. The number of arbitrators must be odd, generally a maximum of 3 is chosen. The arbitrator can be chosen at random from the lists or each party chooses 1 arbitrator and they appoint a third who will be the chair of the meeting.

The arbitration may be organized by the parties, by an institution or third party. The arbitrator can be any person with full execution ability.

The arbitrators must accept or refuse their quality of appointment. They can be challenged and replaced in certain cases provided by law.

I am responsible for the prejudice created under the conditions of the law during the exercise of the duties of arbitrator.

Procedure

The arbitration may not last more than 6 months under the sanction of expiry, this period may be extended in certain situations. The arbitrators can extend with maximum 3 months in justified cases. The term is suspended during the appeal and is extended by 3 months after the death of an arbitrator.

The arbitral tribunal is notified with an arbitration request, which will be communicated by the applicant. The defendant can submit within 30 days and will be able to file a counterclaim.

Judgment

In the arbitration the court proceeds as in a normal court, the parties can derogate from the rules of the CPC with respect to the rules of public order.

The arbitrator studies the file and cites the parties. The parties may seek judgment in the absence or through a representative (lawyer). If the parties do not show up, the dispute will be resolved in the absence of the parties in case the postponement has been requested.

During the trial, it is proposed and it administers evidence (records, witnesses, expertise), formulates requests and exceptions and insurer measures can be taken.

Initially the arbitrators establish the provisional expenses including the fees, the amounts due by the defendant and the plaintiff. If the defendant refuses to make payments, the applicant will record the amount, and by the arbitration decision will determine the final amount due and the amount due by each party.

Arbitrary decision

Based on the administered evidence, the arbitration decision is deliberated and pronounced under the main contract and the applicable law. This decision will be drafted and communicated to the parties and the arbitrators are divested of solving the case. This decision may be supplemented, rectified or clarification may be requested by a separate request. The arbitral decision can be appealed to the Court with an action for annulment for reasons of the procedure, for example: there is no arbitration agreement, the deadline of 6 months was exceeded, the dispute was not within the jurisdiction of the arbitration, etc.

Execution of the decision

It can be executed voluntarily or by forced execution as a common decision.

ICSID and procedure

ICSID submission begins with the submission of an arbitration request. Any Contracting State or any national of a Contracting State wishing to institute a conciliation or arbitration proceeding under the Convention shall submit a request to that effect in writing to the Secretary General, at the headquarters of the Center. The application must indicate whether it concerns a conciliation or arbitration procedure. It shall be drawn up in an official language of the Center, dated, and signed by the requesting party or its authorized representative. The request may be made jointly by the parties to the dispute

The application must have a certain form and content:

  1. The application must:
    1. designates each party to the dispute and specifies the address of each party;
    2. if one of the parties is a constituent subdivision or agency of a Contracting State, that it has been designated at the Center by that State ‘
    3. indicate the date of the consent and the instruments in which it is registered, including, if one of the parties is a constituent subdivision or agency of a Contracting State, similar data regarding the approval of such an agreement by that State if it has not notified To the Center that no such approval is required;
    4. indicates as regards the party who is a national of a Contracting State:
      1. its nationality, at the date of the consent; and
      2. if the party is a natural person:
        • his nationality at the date of request; and
        • that he did not have the nationality of the Contracting State Party in the dispute, either on the date of the consent or on the date of the request; or
      3. if the party is a legal person who, at the date of the consent had the nationality of the Contracting State Party to the dispute, the agreement of the parties which should be treated as a national of another Contracting State within the meaning of the Convention;
    5. contain information on the issues in dispute which indicate that there is, between the parties, a dispute arising directly from an investment; and
    6. state, if the requesting party is a legal person, that it has taken all necessary internal measures to authorize the request.
  2. The requested information is supported by documentation.
  3. “Date of consent” means the date on which the parties to the dispute have agreed in writing to submit it to the Center; if the parties did not act on the same day, it means the date on which the second party acted.”

Additional information is optional:

The request may, in addition, establish any provisions agreed upon by the parties regarding the number of conciliators or arbitrators, as well as the method of appointing them, as well as any other agreed provisions regarding the settlement of the dispute. The application must be accompanied by five additional signed copies. The Secretary-General may request such additional copies as he deems necessary. Any documentation submitted with the application must comply with the requirements of the administrative and financial Regulation

  1. Upon receipt of a request, the Secretary General will:
  2. send a confirmation of the requesting party;
  3. to take no further action on the application until it has received payment of the established fee.
  4. As soon as he has received the fee for the submission of the application, the Secretary-General will send a copy of the application and the accompanying documentation to the other party.
  1. The Secretary General shall, subject to Article 5 (1) (b), as soon as possible, either:
    • record the application for conciliation or the arbitration register and on the same day notify the parties of the registration; or
    • if it finds, on the basis of the information contained in the application, that the dispute is clearly outside the jurisdiction of the Center, it notifies the parties of its refusal to register the application and of the reasons they have.
  2. A proceeding under the Convention shall be deemed to have been instituted at the date of registration of the application.

The announcement of registration of an application is:

  1. records the registered application and indicates the date of registration and dispatch of this notice;
  2. notifies each party that all communications and notices in connection with the procedure will be sent to the address indicated in the application, unless otherwise indicated at the Center;
  3. if no such information has already been provided, invite the parties to communicate any provisions to the Secretary-General agreed by them regarding the number and manner of appointment of conciliators or arbitrators;
  4. to invite the parties to proceed as soon as possible to set up a conciliation commission;
  5. remind the parties that the filing of the application is without prejudice to the powers and functions of the Conciliation Commission or the arbitral tribunal, in terms of jurisdiction, competence and merits; and
  6. be accompanied by a list of the members of the group of conciliators or the arbitrators of the Center.

The requesting party may, by written notification addressed to the Secretary-General, withdraw the application before it has been registered. The Secretary-General shall promptly notify the other Party.

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