INTERNATIONAL REGULARITY CONDITIONS FOR RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
| INTERNATIONAL REGULARITY CONDITIONS FOR RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS | |
| A. Law 105/1992 | B. New York Convention |
| 1. The foreign award must be final and enforceable in compliance with the laws of the country where it was rendered. One may note that this condition is more restrictive than its equivalent in the New York Convention, which solely requires the award to be binding on the parties. The aptitude of the foreign arbitral award to be final and enforceable may be proven by the submission of a certificate issued by the arbitral court. |
1. The award must have become binding on the parties.2. The award must have not been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. |
| 2. The foreign award must be issued by an arbitral tribunal having jurisdiction to hear the case. This condition is not fulfilled under the following circumstances:- the arbitral agreement is not valid; or – the award was rendered by an arbitral court which was not validly formed; or – the award deals with matters not falling within or beyond the scope of submission of arbitration. |
3. The arbitral agreement is valid under the law to which the parties have subjected it or, failing an indication thereon, under the law of the country where the award was made.4. The parties to the arbitral agreement were not incapacitated.5. The composition of the arbitral authority must have been in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.6. The award must not deal with matters not contemplated by, not falling within or beyond the scope of the submission of arbitration. However, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced. |
| 3. The foreign award must not violate the principles of Romanian International Law public order. For example, the foreign award must not infringe upon the exclusive competence of Romanian courts to deal with the matter and the subject matter of the award must be capable of settlement by arbitration. |
7. The recognition or enforcement of the award must not be contrary to the public order under the law of the country where recognition and enforcement is sought.8. The subject matter of the award must be capable of settlement by arbitration under the law of the country where recognition and enforcement is sought |
| 4. In the event that the arbitral award was rendered in the absence of the non- prevailing party, it is mandatory that due service of process related to the hearing on the merits is assessed, and that such non-prevailing party has been granted the possibility to defend itself and to exercise any and all due remedies against such award. 5. The foreign award must not have been obtained fraudulently. 6. There must be reciprocity regarding the effects of foreign arbitral awards between Romania and the country of the arbitral tribunal which rendered the foreign award. Such reciprocity implies that each country’s judiciary will, upon fulfillment of the various national procedures and the submission of appropriate documentation, recognize the adjudications issued by the arbitral courts located in the other country.7. The case has not been decided upon by a Romanian court or was not pending before a Romanian court at the date when the case was filed with the foreign arbitral tribunal. 8. A foreign award can be enforced in Romania within statute of limitations, which is 3 years, unless the statute of limitations provided for by the law of the country where it was rendered is shorter. |
9. The party against whom the award is invoked was given proper notice of the appointment of the arbitrator or of the arbitrator proceedings. Such party must have not been otherwise unable to present his case. |
SOURCE: hr.ro
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CABINET DE AVOCAT CRISTIAN IOAN 
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