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Interim protective measures granted by Romanian Courts during a procedure for recognition and enforcement of a foreign arbitral award
To ensure the effectiveness of a court decision means to secure the possibility of the winning party to be able to enforce a favorable decision and to effectively cash its receivables. For example, if during a court proceeding it is allowed for the party that bears, prima facie, a considerable risk of losing, to alienate all its assets so that, when the decision will be rendered, the winning party would have no chance to enforce the decision, in this situation, the effectiveness of the court decision is obstructed.
Eugen Sarbu, Partner, Oglinda & Partners
[1] C. Negrilă, Commentary on art. 970, in G. Boroi (coord.), The New Civil Procedure Code: commented, 2nd volume, Hamangiu Publishing House, Bucharest, 2016, pp. 800-802. [2] Decision no. 536/2011 of 06-oct-2011, Oradea Court of Appeal. [3] C. A. Bucharest, s.a. V civ., dec. civil no. 442 of June 3, 2014, apud. Tr. C. Briciu, Commentary on art. 953, in V.M. Ciobanu, M. Nicolae (coords.), The New Civil Procedure Code: commented and annotated, 2nd volume, Universul Juridic Publishing House, Bucharest, 2016, p. 1255. [4] Tr. C. Briciu, Commentary on art. 953, in V.M. Ciobanu, M. Nicolae (coords.), The New Civil Procedure Code: commented and annotated, 2nd volume, Universul Juridic Publishing House, Bucharest, 2016, p. 1255. [5] Tr. C. Briciu, op. cit., p. 1258. [6] Order no. 190/21.03.2016, Galati Court, File x/233/2016, case submitted to the address: https://www.legal-land.ro/poprire-asiguratorie-obligatia-de-depune-cautiune/.
Legal conditions for granting interim measures
According to art. 953 of Romanian Civil Procedure Code (RCPC), for establishing interim measures, the following conditions must be met:- the creditor, although he does not have an enforceable award on Romanian territory (until the foreign arbitral award is recognized), proves that he has begun the process to obtain the recognition and enforcement of the award;
- the receivable is ascertained in a written document;
- the receivable must be due;
- in certain situations, it may be necessary to provide a Security.
- The creditor, although he does not have an enforceable title, proves that he has begun the legal proceedings to obtain recognition and enforcement in Romania
- The debt is ascertained in a written document - meaning the arbitral award
- The receivable is due
- Providing a Security
What happens to the interim precautionary garnishment at the end of the exequatur procedure?
At the end of the exequatur procedure, the creditor will obtain, on Romanian territory, an enforceable title against his debtor, and he will be able to request validation of the garnishment. At this point, the interim precautionary garnishment automatically converts into a measure of enforcement, meaning that the third party is obliged to pay directly to the creditor the amounts/assets seizure under the Order for interim measures (precautionary garnishment).Eugen Sarbu, Partner, Oglinda & Partners
[1] C. Negrilă, Commentary on art. 970, in G. Boroi (coord.), The New Civil Procedure Code: commented, 2nd volume, Hamangiu Publishing House, Bucharest, 2016, pp. 800-802. [2] Decision no. 536/2011 of 06-oct-2011, Oradea Court of Appeal. [3] C. A. Bucharest, s.a. V civ., dec. civil no. 442 of June 3, 2014, apud. Tr. C. Briciu, Commentary on art. 953, in V.M. Ciobanu, M. Nicolae (coords.), The New Civil Procedure Code: commented and annotated, 2nd volume, Universul Juridic Publishing House, Bucharest, 2016, p. 1255. [4] Tr. C. Briciu, Commentary on art. 953, in V.M. Ciobanu, M. Nicolae (coords.), The New Civil Procedure Code: commented and annotated, 2nd volume, Universul Juridic Publishing House, Bucharest, 2016, p. 1255. [5] Tr. C. Briciu, op. cit., p. 1258. [6] Order no. 190/21.03.2016, Galati Court, File x/233/2016, case submitted to the address: https://www.legal-land.ro/poprire-asiguratorie-obligatia-de-depune-cautiune/.