Exequatur of foreign arbitral awards in Romania

Conditions for Exequatur of foreign arbitral awards in Romania

Romania ratified in 1961 The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards that establishes a simple and efficient[1] procedure for the recognition and enforcement of foreign arbitral awards.

Romanian Civil Procedure Code (RCPC) makes, in Art. 1124-1133, a faithful transposition of the system put in place by the New York Convention.

These provisions regulate the following conditions for the recognition and enforcement of a foreign arbitral award in Romania:

1. The arbitral award must be a foreign arbitral award according to Art. 1124 RCPC

For an arbitral award to be considered foreign, it must meet two cumulative conditions[2], namely that: (i) the award is given in a foreign state and (ii) the award is not considered a national award in Romania.

2. The subject matter of the dispute must be capable of settlement by arbitration in Romania

Generally, all commercial matters are arbitrable, therefore arbitral awards given in commercial international arbitrations can be recognised and enforced in Romania.

3. The arbitral award must be binding

Usually, most Arbitral Rules and national procedural laws provide for the binding nature of an arbitral award, therefore this condition may easily be fulfilled in almost any case.

There are two exceptional situations when an arbitral award may lose its binding force and enforcement will be refused: (i) a challenge against the award was admitted; (ii) a temporary suspension of the award was ordered.

4. The award is not contrary to Romanian public policy

Given the fact that most commercial arbitrations follow universally accepted rules for arbitration that are similar to Romanian law, it may be quite difficult for a party to prove in an exequatur proceeding regarding a commercial arbitral award that the award violates the public policy of Romanian international law. Of course, there are exceptional situations when the compliance between Romanian law and foreign rules give rise to sensitive debates in matters like insolvency, real estate etc.

5. The award must be given by an arbitral tribunal constituted according to the parties’ convention

If the parties established in the arbitral convention a certain procedure to be followed for the naming of the arbitrators or choosing the seat of the arbitration, that procedure should have been followed.

This condition could be related to the number of arbitrators, their nationality or any other in personam requirements (profession, studies, areas of practice, specific know-how etc.)

Any breach of these 5 conditions can be a ground for denial of recognition and enforcement of the arbitral award in Romania.

What are the steps of an exequatur procedure?

1. Necessary documents

According to Art. 1128 RCPC the creditor-plaintiff must attach to the request for exequatur the following documents:

1. The arbitral award that is to be recognised and enforced, in original or in copy;
2. A certified translation of the arbitral award, if the document is not written in Romanian;
3. The arbitral convention between the parties;
4. A certified translation of the arbitral convention between the parties.

These documents are the minimum requirements for the Romanian court to be able to determine if the arbitral award meets all the conditions for recognition and enforcement.

The documents must be filed in two copies each, one for the court and one to be communicated to the debtor-defendant.

2. The interdiction to analyse the merits of the arbitral award

According to Art. 1133 RCPC, the exequatur judge cannot examine the arbitral award on the merits of the dispute. The role of the exequatur judge is to simply analyse if the conditions for exequatur are met, regardless of what the arbitral tribunal decided.

In practice, some parties could tend to use the exequatur proceedings in order to challenge some aspects on the merits of the arbitral award that they are not satisfied with. This tendency must be swiftly opposed by the exequatur court.

3. Can the exequatur award be challenged?

Yes, the party not satisfied with the decision of the exequatur court can file an appeal in 30 days since the decision was communicated.

4. How long can an exequatur process take?

From our experience and depending on the circumstances of the case, an exequatur of a foreign commercial award in Romania can take between 3 and 7 months.

Eugen Sarbu, Partner, Oglinda & Partners

[1] M. Voicu, Convenția pentru recunoașterea și executarea sentințelor arbitrale străine – New York, 10.06.1958 – 60 de ani de la adoptare, available at: https://www.juridice.ro/essentials/2371/conventia-pentru-recunoasterea-si-executarea-sentintelor-arbitrale-straine-new-york-10-06-1958-60-de-ani-de-la-adoptare .

[2] S-Al. Stanescu in V.M. Ciobanu, M. Nicolae (coord.), Noul Cod de procedura civila comentat si adnotat, Vol. II, Universul Juridic, Bucharest, 2016, pp. 1767-1768.