CONDITIONS FOR RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS (EXEQUATUR)

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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