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In Romania, the general legal provisions on arbitration are included in a special chapter of the Civil Procedure Code and have a pronounced international character, being aligned with the rules of the main arbitral institutions in the European Union and the UNCITRAL Model Law. In addition, Romania has several arbitral institutions, the main one being the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania, all of which have their own arbitration rules. From 1 January 2018, the Romanian Court of International Commercial Arbitration has followed updated arbitration rules, which are aimed at supporting the business environment in line with best European and international practice in the field and being capable of contributing to the fast and efficient settlement of disputes.
1. HISTORICAL BACKGROUND
1.1.1 Arbitration in Romania has been regulated since 1865 by the provisions on arbitration contained in the fourth book of the Romanian Civil Procedure Code. Subject to various amendments, these provisions were in force until very recently. As of 15 February 2013, the New Romanian Civil Procedure Code (CPC) applies to arbitration.
CPC, art 541 – 621.
Domestic arbitration is traditionally regulated in the fourth book of the CPC, while Title IV of Book VII sets out the legal provisions addressing relevant international arbitration agreements. In 2015, the CPC was substantially amended, with the Romanian legal provisions on arbitration largely following the principles and the structure of the UNCITRAL Model Law (1985).
For the full text of the Model Law (1985) see http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf.
1.1.2 The recognition and enforcement of foreign awards is comprehensively regulated by the CPC.
See CPC Seventh Book, art 1111 – 1133.
Romania has also ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) and other relevant international conventions and bilateral treaties on arbitration.
1.1.3 In 1953, the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania (International Arbitration Court) was established. During the communist era, the International Arbitration Court settled only international commercial disputes. In 1990, a new law establishing the International Arbitration Court was enacted, enabling this institution to also handle domestic commercial disputes.
2. SCOPE OF APPLICATION AND GENERAL PROVISIONS OF THE FOURTH BOOK OF THE CPC
2.1 Subject matter
2.1.1 The provisions of the fourth book of the CPC constitute a basic framework for all forms of arbitration: they apply to ad hoc and institutional arbitration, and domestic and international arbitration (whether determined according to law or ex aequo et bono). The parties may choose to conduct their arbitrations on an ad hoc basis or may refer their disputes to a specialised arbitral institution, such as the International Arbitration Court.
2.1.2 Similar to the approach taken by the arbitration legislation of other Central European countries, the fourth book of the CPC draws a distinction between domestic and international arbitration and contains specific provisions for international arbitration in the Seventh Book, Title IV (articles 1111 - 1133) of the CPC.
2.1.3 An arbitration taking place in Romania is considered international if it arises out of a private law relationship with a foreign element.
CPC, art 1111.
Thus, an arbitration is considered international when at least one aspect of the matter in dispute is not related to the seat of arbitration.
Eg the parties in dispute have different nationalities, the substantive applicable law is different than that of the lex fori, the object of the dispute is in a different jurisdiction, or the place of performance of the contractual undertakings is different than lex fori, etc.
In general, an international arbitration is one that concerns contracts that have a foreign element such that a conflict of laws could arise with respect to such contracts.
2.2 Structure of the law
2.2.1 Titles I to VII of the fourth book of the CPC deal with general provisions regarding arbitration (the arbitration agreement, composition and constitution of the arbitral tribunal, conduct of arbitral proceedings, costs of arbitration and the award, challenges and enforcement), while Title IV of the seventh book concerns special provisions applicable only to international arbitration and to the recognition and enforcement of foreign awards.
2.3 General principles
2.3.1 The CPC expressly stipulates three of the most important principles governing Romanian arbitration:
Fairness: the parties must be treated equally by the arbitral tribunal and each party is entitled to a fair hearing.
Right to a defence: the parties must be given a full opportunity to present their cases and the arbitral tribunal must hear both sides.
The principle of hearing both sides: all parties must be properly served in order for the arbitral proceedings to take place. Each party must be given the opportunity to respond to all legal and factual aspects of the arbitration raised by the other party or by the arbitral tribunal before the arbitral proceedings close and an award is rendered.
2.3.2 Failure to comply with these principles may render the award null and void.
2.3.3 In addition, the CPC contains some further mandatory provisions which may also be regarded as general principles of arbitration in Romania, such as party autonomy, confidentiality and non‑intervention by the courts.
Party autonomy: The parties are free to agree on the procedure to be followed in the arbitration, in their arbitration agreement, in a subsequent separate written agreement or by reference to arbitration rules, provided that there is no conflict with Romanian public policy and good morals.
Ibid, art 544(2).
Confidentiality: The appointed arbitrators are liable for damages caused by the non-observance of their confidentiality obligation.
Ibid, art 565(c).
This obligation to keep the arbitral proceedings confidential represents one of the main differences between arbitration and court litigation, which is governed by the principle of public hearings. However, the confidentiality obligation only arises where the parties have so agreed (there is otherwise no legal obligation for the parties to keep the arbitral proceedings confidential).
Non-intervention by the courts: A valid arbitration agreement excludes the jurisdiction of the courts to settle the dispute to which the arbitration agreement relates.
Ibid, art 553.
The court that would have been competent to determine the dispute if no arbitration agreement had been concluded, retains, according to the CPC, jurisdiction in relation to certain matters, including ordering interim measures and ruling on conflicts of jurisdiction (as further detailed in sections 8-10 below).
3. THE ARBITRATION AGREEMENT
3.1.1 An arbitration agreement is an agreement by which the parties agree that disputes arising out of or in connection with a contract are to be settled by arbitration. In cases of ad hoc arbitration, the arbitration agreement must also include the name of the arbitrators or the method of appointing the arbitral tribunal.
Ibid, art 551.
3.2 Formal requirements
3.2.1 The arbitration agreement may be in the form of an arbitration clause in a larger contract or in the form of a separate agreement (otherwise known as a submission agreement).
Ibid, art 549.
An arbitration agreement must be in writing, otherwise it is null and void.
Ibid, art 548. The same requirement applies to international arbitration agreements, CPC, art 1113.
Any written document that confirms the will of the parties to submit a dispute to arbitration may be considered a valid arbitration agreement (eg letters, faxes, invoices, purchase orders and email correspondence are all satisfactory documents). In this regard, the parties shall expressly agree to settle future disputes arising out of or in connection with the contract that contains the arbitration clause through arbitral proceedings.
3.2.2 In cases of ad hoc arbitration, the arbitration clause shall expressly specify the method of appointing the arbitral tribunal.
Ibid, art 550(1).
In cases of institutional arbitration, a mere reference to the arbitral rules to be used will be sufficient. If the parties have failed to establish the number of arbitrators, the dispute shall be determined by three arbitrators, each party having the right to appoint one arbitrator, with the chair being appointed by the other two arbitrators.
Ibid, art 556(2).
In addition, the CPC contains default provisions for the appointment of the arbitrators where the parties have failed to nominate the arbitrators or to provide the method of appointment in an arbitration agreement (see paragraph 4.1.3 below).
Ibid, art 558.
3.2.3 In a submission agreement, the parties agree that a dispute that has already arisen between them shall be settled by arbitration. Thus, as a formal requirement, in addition to the requirements referred to above, a submission agreement for arbitration shall also expressly specify the subject matter of the dispute. Similar to arbitration agreements, where a submission agreement fails to specify the method of appointing the arbitral tribunal, in case of institutional arbitration, the arbitral rules of such institution for arbitrator appointment will apply.
Ibid, art 551(1).
3.2.4 Subject to the rules of Romanian public policy, good morals and the mandatory provisions of the law, the parties may, by the arbitration agreement, by a subsequent written agreement or by reference to established arbitral rules, make provision for:
the composition of the arbitral tribunal;
the appointment, challenge and replacement of arbitrators;
the time and seat of the arbitral proceedings;
the procedural norms to be followed by the arbitral tribunal (including a possible preliminary conciliation);
payment of the costs of the arbitration as between the parties;
the form and contents of the award; and
any other details that are necessary for the proper conduct of the arbitral proceedings.
Ibid, art 544.
3.2.5 In addition, the parties should also identify the language of the arbitration and the substantive law applicable to the merits of their dispute in their arbitration agreement (further information on this point is set out at paragraph 6.3.2 below).
3.3 Special tests and requirements of the jurisdiction
3.3.1 Persons with full legal capacity may agree to settle “patrimonial disputes” by arbitration, except for disputes affecting rights which cannot by law be freely transferred.
Ibid, art 542.
The term “patrimonial disputes” is commonly interpreted as referring to disputes involving a financial interest.
3.3.2 Under Romanian law, contracts may not resolve matters such as the civil status of persons, collective labour conflicts, certain shareholder disputes,
Disputes regarding the validity of the decisions taken by the General Meeting of Shareholders are not arbitrable.
annulment of intellectual property rights or bankruptcy proceedings. Accordingly, disputes concerning such legal relationships are not arbitrable.
3.4.1 The validity of the arbitration agreement is treated as independent from the validity of the main contract in which it has been incorporated.
CPC, art 550(2).
However, certain defects affecting the main contract, such as the legal incapacity of a contracting party, would also affect the validity of an arbitration agreement contained in the main contract.
3.5 Legal consequences of a binding arbitration agreement
3.5.1 The conclusion of an arbitration agreement excludes the jurisdiction of the courts to settle the dispute to which the arbitration agreement relates. If, during proceedings before a State court, a party invokes an arbitration agreement, then the court is obliged to verify it has jurisdiction before it may resolve the dispute.
4. COMPOSITION OF THE ARBITRAL TRIBUNAL
4.1 Constitution of the arbitral tribunal
4.1.1 As stipulated by law, any natural person of full legal capacity may be an arbitrator.
4.1.2 The CPC provides that arbitrators shall be appointed, dismissed or replaced in accordance with the terms of the arbitration agreement.
Ibid, art 558(1).
The dispute shall be settled by an uneven number of arbitrators.
In domestic arbitration, the parties are free to agree whether the dispute shall be settled by a sole arbitrator or by two or more arbitrators; see CPC, art 556.
4.1.3 The CPC sets out a default procedure applicable in the event that the sole arbitrator or the arbitrators were not designated in the arbitration agreement and no provision was made for the method of their appointment.
See CPC, art 558(2).
The claimant shall invite the other party in writing either to consent to the appointment of the proposed arbitrator in the case of a sole arbitrator, or to nominate its arbitrator in the case of an arbitral tribunal consisting of more arbitrators. The notice shall give full details of the proposed sole arbitrator or the arbitrator appointed by the claimant. The party so notified must respond within ten days of receipt of the notice with its comments on the appointment of the sole arbitrator or with the details of the arbitrator appointed by it, as the case may be.
4.1.4 In the absence of an agreement by the parties, the arbitral tribunal shall be composed of three arbitrators, one appointed by each party and the third (who shall be the chair of the arbitral tribunal) appointed by the two party-appointed arbitrators.
Ibid, art 556(2).
If there are several claimants and / or respondents, the parties with a common interest shall together appoint an arbitrator.
Ibid, art 556(3).
4.1.5 The International Commercial Arbitration Court, under the Romanian Chamber of Commerce
This private arbitral institution is the most commonly used in Romania.
publishes a list of arbitrators.
As at the date of publication of this guide, it listed 109 Romanian arbitrators and 66 foreign arbitrators.
The list is merely informative, and does not limit in any way the right of the parties to nominate, agree or appoint their desired arbitrator(s).
4.1.6 Following their appointment, the proposed arbitrators must accept their appointment in writing and notify each party of their acceptance within five days of receipt of the appointment proposal.
CPC, art 559.
If the proposed arbitrators refuse the appointment, there is no notification obligation (refusal may be determined by the lack of notification within the set deadline). The two party-appointed arbitrators shall appoint the chair within ten days from the date of the last acceptance.
Ibid, art 560.
The arbitral tribunal shall be regarded as constituted on the date on which the last arbitrator accepts his or her mandate.
Ibid art 566 and 1115(4).
4.1.7 Any clause in an arbitration agreement which gives rise to an inequality of arbitrator appointments (for example, in the case of a three party tribunal, where only one party is entitled to appoint an arbitrator, or where one party is permitted to appoint more arbitrators than the other) shall be null and void.
Ibid, art 557.
4.1.8 Either party may make a request to the competent court that it appoints an arbitrator in circumstances where the parties have agreed that the arbitral tribunal shall consist of a sole arbitrator but: (a) cannot reach an agreement on his or her appointment; (b) a party fails to appoint its arbitrator; or (c) the party-appointed arbitrators cannot agree on the appointment of the chair.
Ibid, art 561.
The court shall summon the parties and make the appointment within ten days of the petition being submitted. The court’s decision cannot be appealed.
4.2 Procedure for challenging and substituting arbitrators
4.2.1 An arbitrator may be challenged on legal or contractual grounds in circumstances that give rise to justifiable doubts concerning his or her impartiality or independence. An arbitrator may also be challenged if he or she does not fulfil the requirements or possess the qualifications agreed between the parties.
Ibid, art 562(1) (a).
The legal grounds for challenging arbitrators are expressly set out in the CPC.
Ibid, art. 41, 42 and 563(3)
A party may not challenge an arbitrator it has appointed except on grounds that become apparent after the appointment was made.
Ibid, art 562(2).
4.2.2 A person who has been invited to act as an arbitrator must, before his/her appointment, disclose all circumstances that could give rise to justifiable doubts as to his or her impartiality or independence and any other circumstances that may otherwise constitute a reason to challenge his or her appointment.
Ibid, art 562(3).
The arbitrator must also immediately disclose any such circumstances if they arise at any point between the date of his or her appointment and the conclusion of the arbitral proceedings. In such circumstances, the arbitrator cannot further participate in the decision making of the arbitral tribunal unless all parties have been apprised of the relevant circumstances and have informed the arbitrator (or, as the case may be, the arbitral tribunal) in writing that they do not intend to challenge the arbitrator in question.
Ibid, art 562(4).
4.2.3 Any challenge to an arbitrator must be made within 20 days (ten days in domestic arbitration) of the appointment of the arbitrator or of the occurrence of circumstances giving rise to justifiable doubts as to the arbitrator’s impartiality or independence, as the case may be. The challenge of an arbitrator shall be determined by the court.
Ibid, art 563 and 1115(4).
Non-compliance with the time limit may result in the right to challenge the arbitrator or the subsequent award being lost. The parties and the challenged arbitrator must be notified of the challenge. The court’s decision on the challenge is not subject to appeal.
4.2.4 If the appointment of an arbitrator is terminated (by challenge, resignation, dismissal, death or for any other reason), a substitute arbitrator shall be appointed in accordance with the same rules as those applicable to the original appointment of the arbitrator to be replaced.
Ibid, art 564.
4.3 Responsibilities of an arbitrator
4.3.1 One of the most important differences between a state court judge and an arbitrator is that the arbitrator may be liable for damages if he or she:
resigns from the office without good reason after having accepted an appointment as arbitrator;
fails without good reason to participate in the hearings and deliberations of the arbitral tribunal or to issue the award within the time frame established by the arbitration agreement or by law;
does not observe his or her confidentiality obligation and discloses information obtained through his or her capacity as arbitrator without the approval of the parties; or
s otherwise in material breach of an arbitrator’s obligations.
Ibid, art 565.
4.4 Arbitration fees
4.4.1 The definition of arbitration expenses and the question of how these expenses shall be allocated between the parties in the award and paid is dealt with further in section 7.4 below.
4.4.2 The arbitral tribunal may make a provisional assessment of the amount of the arbitrators’ fees at the outset of the arbitration and order the parties to deposit that sum in equal amounts. The arbitral tribunal may also order such a deposit to be paid by the parties jointly and severally.
Ibid, art 596.
Likewise, the arbitral tribunal may order the parties to pay other arbitral expenses in advance.
Ibid, art 597.
If the respondent fails to pay the required deposit within the time limit established by the arbitral tribunal, the claimant shall pay the whole deposit and the arbitral tribunal shall subsequently establish in its award the amount of the fees due to each arbitrator, the amount of any other expenses and how these amounts are to be paid by the parties.
Ibid, art 596(3).
4.4.3 In any event, the arbitral tribunal has the right to suspend the arbitral proceedings until the deposits or advance payments requested have been made.
Ibid, art 597(2).
4.4.4 Either party may request the competent court to review the measures ordered by the arbitral tribunal, and to establish the amount of the arbitrators’ fees and of any deposits or advances requested. The decision of the competent court is final and enforceable.
Ibid, art 598.
4.4.5 The arbitrators’ fees shall be paid to the arbitrators after the award has been communicated to the parties. If arbitral proceedings are started, but do not proceed to the making of an award, the arbitrators’ fees shall be reduced accordingly.
Ibid, art 599.
4.4.6 Where the arbitral tribunal has ordered payment of a deposit on account of arbitration expenses, the amount of such expenses (and any surplus or deficit) shall subsequently be regulated in the award and be paid before the award is communicated to the parties or deposited with the court.
Ibid, art 600.
4.4.7 In institutional arbitral proceedings, the arbitrators’ fees and expenses shall be established and paid in accordance with the rules of the relevant arbitral institution (see paragraph 7.4.4 below).
Ibid, art 620.
4.5 Arbitrator immunity
4.5.1 The CPC does not provide any specific provisions regarding the immunity of arbitrators. However, it is implied that an arbitrator may not be held liable for the award rendered except in cases of fraud or other misconduct, as detailed in paragraph 4.3.1 above.
5. JURISDICTION OF THE ARBITRAL TRIBUNAL
5.1 Competence to rule on jurisdiction
5.1.1 The CPC gives the arbitral tribunal the power to rule on its own jurisdiction.
Ibid, art 579.
At the outset of the arbitral proceedings, the arbitral tribunal examines whether it has jurisdiction to determine the dispute between the parties, even if no party has challenged the jurisdiction. It will issue an interim award on jurisdiction. Such an award may only be challenged before the courts, together with the final award of the arbitral tribunal. Should the arbitral tribunal find it has no jurisdiction, it will render an award in this respect, and such award will be final.
5.1.2 The arbitral tribunal has jurisdiction to order interim or protective measures during the arbitration. If the parties do not voluntarily comply with such measures, they may be enforced with the permission of the court.
Ibid, art 585(4).
After the permission has been granted by the court, the enforcement shall be made via an enforcement officer. The courts also have parallel jurisdiction to order interim measures.
On which see paragraph 8.3.1 below.
6. CONDUCT OF PROCEEDINGS
6.1 Commencing an arbitration
6.1.1 Unless the parties agree otherwise, the arbitral proceedings begin when the claimant serves on the respondent a copy of his or her written statement of claim, together with copies of the relevant documents on which it relies as evidence in support of its claim.
CPC, art 571 and 572.
The claimant has to serve copies of the request for arbitration and related annexes to each of the arbitrators.
6.2 General procedural principles
6.2.1 The arbitral tribunal shall conduct the arbitral proceedings:
on the basis of the rules set out in the arbitration agreement concluded between the parties (subject to mandatory provisions of public policy and good morals);
Ibid, art 544(1) and 544(2).
if the parties have not agreed the procedure to be followed, at its procedural discretion;
Ibid, art 544(3).
if the arbitral tribunal does not establish any procedural norms, in accordance with the optional procedural rules for the conduct of arbitral proceedings in the provisions of the fourth book of the CPC (as to which see further below).
Ibid, art 544(4).
6.2.2 In practice, parties from Romania frequently provide in their arbitration agreement for their disputes to be resolved by arbitration before the International Arbitration Court, in accordance with its sets of procedural rules.
A copy of the arbitration rules of this institution is available at [ http://arbitration.ccir.ro/wp-content/uploads/2017/06/Rules_of_arbitration_2014.pdf] (accessed on the 30th of October 2017).
The CPC expressly provides that the parties may agree that the arbitration be administered by such a permanent arbitral institution.
CPC, art 545.
6.3 Seat, place of hearing and language of the
6.3.1 The parties are free to agree the seat of the arbitration. Failing such an agreement, the arbitral tribunal determines the seat of the arbitration.
Ibid, art 569.
Accordingly, in international arbitration, the seat of the arbitration is to be stipulated in the parties’ arbitration agreement or, in the absence of a contractual choice, shall be decided by the arbitrators.
Ibid, art 1111(3).
6.3.2 In relation to both domestic and international arbitral proceedings, the language of the arbitral proceedings shall be that chosen by the parties in their arbitration agreement or, in the absence of a contractual choice or any subsequent agreement, in the language of the contract giving rise to the dispute, or in another international language chosen by the arbitral tribunal.
Ibid, art 570(1) and 1116(1).
The arbitral tribunal shall arrange for the services of a translator at the request of a party which is not familiar with the language of the arbitral proceedings and at that party’s expense. The parties are free to use their own translators for the purposes of the arbitral proceedings.
6.4 Multi-party issues
6.4.1 As with any other type of agreement, an arbitration agreement is only binding upon the parties to that arbitration agreement. Therefore, in principle, a non-party to the arbitral agreement may only join the arbitration if all of the parties to those arbitral proceedings agree that they may do so.
6.4.2 In the case of multi-party agreements including an arbitration clause, any party to that agreement may intervene in the arbitral proceedings upon its own will, or may join the arbitration upon the request of one of the parties to the arbitration.
Ibid, art 61-77.
The parties that have common interests may appoint a single arbitrator.
Ibid, art 556(3).
6.5 Oral hearings and written proceedings
6.5.1 The requirements of the contents of the written statement of claim are set out in the CPC. It must contain:
the name, domicile or residence of the parties or, in the case of legal persons, their name and place of incorporation, as well as their company registration number, telephone number and bank account details; should the claimant have his or her domicile or place of incorporation outside Romania, they should provide the arbitral tribunal with an address for service in Romania for the purpose of communication of procedural documents;
the name and capacity of any representatives of the claimant (documentary evidence of such capacity should be attached to the statement of claim);
reference to the arbitration agreement or the submission agreement (copies of the main agreement containing the arbitration agreement or of the submission agreement should also be attached to the statement of claim);
the subject matter and value of the claim and the calculation by which that value was determined;
the factual and legal grounds and the evidence on which the claim is based; the names and places of residence of the members of the arbitral tribunal; and
the signature of the claimant.
See ibid, art 571(1).
6.5.2 Within 30 days of receipt of a copy of the statement of claim, the respondent must serve its defence.
Ibid, art 573.
The defence must include:
any objections with regard to the statement of claim;
the factual and legal reply to the statement of claim and the evidence relied upon; and
the content set out in paragraph 6.5.1 above as applicable to the statement of defence.
6.5.3 If the arbitral proceedings are delayed because of the respondent’s failure to submit his or her statement of defence on time, the respondent must pay the costs caused by such delay.
Ibid, art 573(3).
6.5.4 After the defence has been filed, additional objections or defences may only be raised prior to the first hearing.
Ibid, art 573(2).
If the respondent has counterclaims arising out of the same contractual relationship, he or she may submit them to the arbitral tribunal together with the defence, but no later than at the first hearing. The counterclaim must meet the same requirements as the statement of claim.
Ibid, art 574.
Each party may amend its written submissions in the course of the arbitral proceedings, but only prior to the first hearing before the arbitral tribunal.
6.5.5 All statements of case, written documents and other notifications that are submitted to the arbitral tribunal by one party must be copied to the other party. All communications between the parties and the arbitral tribunal shall be made by registered letter with receipt of delivery or confirmation of receipt. Information may also be transmitted by fax or by any other means of communication that provides evidence of the transmission and of the transmitted text. Documents may also be delivered directly to a party against signature of a receipt.
Ibid, art 577(2).
6.5.6 Immediately after the expiration of the time limit for the filing of the statement of defence, the arbitral tribunal shall examine whether the dispute is ready to be heard and, if necessary, order adequate measures for the completion of any outstanding matters.
Ibid, art 578(1).
Afterwards, the arbitral tribunal must fix the time for the hearing and summon the parties once the case is ready to be heard and the submissions have been filed.
Ibid, art 578(2).
There must be an interval of at least 30 days between the date of receipt of the summons by the parties and the date of the hearing. In domestic arbitration, there must be an interval of at least 15 days between the date of receipt of the summons by the parties and the date of the hearing.
Ibid, art 580 and 1115(4).
6.5.7 The parties may participate in the arbitral proceedings (and attend the hearing) personally or through any representative, though arbitral hearings are not open to the public.
Ibid, art 80(3).
Hearing dates, of which the parties have been informed or for which summonses have been served, may only be changed for good reasons and if the parties are notified thereof.
6.5.8 The parties must raise any objections to the existence and validity of the arbitration agreement, the constitution of the arbitral tribunal, the scope of the arbitral tribunal’s jurisdiction and the conduct of the arbitral proceedings up to that point no later than at the first hearing, unless a shorter time limit has been agreed. The right to raise such objections may otherwise be lost.
Ibid, art 592(1).
6.5.9 The parties must also present their petitions and any documentary evidence no later than at the first hearing.
Ibid, art 592(2).
Any evidence which has not been identified by the parties before the first hearing cannot be invoked in the arbitral proceedings, except in cases where the need for further evidence has resulted from the arbitral proceedings, or the additional evidence does not delay the resolution of the dispute.
Ibid, art 587(1).
6.5.10 The CPC requires that the arbitral proceedings shall be recorded in a hearing minute.
Ibid, art 593(1) and (2).
Any decision of the arbitral tribunal and the grounds for that decision shall be recorded therein.
6.5.11 The minutes of each session of the arbitral tribunal shall contain:
the composition of the arbitral tribunal;
the date and place of the session;
full details of the parties, their representatives and any other persons who participated in the arbitral proceedings;
a brief description of the proceedings at that session;
the requests and arguments of the parties;
the reasons for any measures ordered;
the order of the arbitral tribunal; and
the signatures of the arbitrators.
Ibid, art 593(3).
6.5.12 The parties are entitled to review the contents of the minutes and the documents on the file. The arbitral tribunal may amend or complement the minutes of a session by other minutes upon the parties’ request or ex officio. A copy of the minutes of each session shall be served on the parties at their request.
Ibid, art 593(5).
6.6 Default by one of the parties
6.6.1 The failure by a party to attend a hearing, although duly summoned, shall not prevent the progress of the arbitral proceedings, unless the absent party submits, no later than three days before the hearing, a request to the arbitral tribunal for adjournment of the hearing on good grounds and notifies the arbitrators and the other party thereof.
Ibid, art 582.
6.6.2 Either party may request in writing that the dispute be settled in its absence on the basis of the documents filed.
Ibid, art 583.
6.6.3 In the event that neither party attends a hearing on the appointed date, although duly summoned, the arbitral tribunal shall proceed with the determination of the dispute, except where the parties have requested an adjournment on reasonable grounds Furthermore, the arbitral tribunal may postpone the determination of the dispute and summon the parties where their presence at the hearing or the production of evidence is deemed necessary.
Ibid, art 584.
6.7 Taking of evidence
6.7.1 The rules on evidence are set out in articles 586 and 588 of the CPC. However, in addition to these arbitration-specific rules, arbitral tribunals also frequently apply the rules of the CPC that govern witness and expert evidence in court proceedings.
6.7.2 Each party has the burden of proof in relation to the facts on which it bases its claim or defence. In determining the dispute, the arbitral tribunal may request the parties to file written submissions on the claim and the facts of the dispute and may order the production of any evidence as provided by the law.
6.7.3 Evidence shall be produced during the sessions of the arbitral tribunal. Witnesses and experts shall be heard without taking an oath.
Ibid, art 589.
The arbitral tribunal cannot compel witnesses or experts to give evidence but may request the assistance of the courts in taking the required measures. The courts may order witnesses to give evidence and make statements and may impose sanctions for failure to do so. Cross-examination is not normally part of the procedure for domestic arbitration. Nonetheless, the parties may, under the observation of the arbitral tribunal, put questions to the opponent’s witnesses (in which case, the arbitral tribunal may rephrase a question or determine that a question should not be put to the witness).
6.8 Appointment of experts
6.8.1 The arbitral tribunal may order the use of an expert to clarify technical or accounting issues at the request of any of the parties or ex officio. The tribunal-appointed expert may request that the parties produce documents or other information and must take the parties’ statements into account when preparing his or her report. If a party acts in such a way as to hinder the production or completion of an expert report, for example, by failing to provide the expert with documentation he or she has requested, the arbitral tribunal may impose a fine on such party.
Ibid, art 187(1) d.
A party may also apply to the arbitral tribunal for an order that another party produce documents that it holds.
Ibid, art 293 to 299.
Failure to produce such documents entitles the arbitral tribunal to draw an adverse inference.
6.8.2 Experts normally summarise their findings in a written report, which is submitted to the arbitral tribunal and communicated by the arbitral tribunal to the parties. The parties may submit comments and questions on the report prior to the hearing. The expert may be questioned by the parties at the hearing under the control of the arbitral tribunal. The parties are entitled to appoint party-appointed experts who may submit their own report in which they agree or disagree with the tribunal-appointed expert/experts.
6.9.1 Confidentiality is one of the distinguishing factors of arbitration. Arbitrators may be held liable for damages in the event that they breach the confidentiality of the arbitration and disclose information relating to the arbitral proceedings without the prior approval of the parties.
Ibid, art 565(c).
6.9.2 The hearings are not public, but if the parties did not previously agree to keep the arbitral proceedings confidential, they may disclose the details of the arbitral proceedings.
6.10 Court assistance in taking evidence
6.10.1 Any interested party may institute proceedings before the court in order to remove any impediments that might arise in the composition of the arbitral tribunal or conduct of the arbitration.
Ibid, art 547(1).
Such proceedings should be brought before the court in whose territorial jurisdiction the arbitration takes place. The court shall settle such petitions summarily and as a matter of priority.
Ibid, art 547(2).
7. MAKING OF THE ARBITRAL AWARD AND TERMINATION OF PROCEEDINGS
7.1 Choice of law
7.1.1 The arbitral tribunal shall make its award on the basis of the provisions of the main contract and the applicable rules of law, taking into consideration the usage of the trade applicable to the dispute.
Ibid, art 601(1).
7.1.2 The law applicable to the contractual obligations is that expressly provided by the parties. If the parties fail to specify the applicable law, it is to be determined in accordance with the regulations of the European Union.
(EC) Regulation 593 / 2008 (Rome I); Romanian Civil code, art 2.640.
7.1.3 The arbitral tribunal may only decide a dispute ex aequo et bono if the parties have expressly authorised it to do so.
CPC, art 601(2).
7.2 Timing, form, content and notification of an award
7.2.1 The award shall be drawn up in writing and shall include:
the names of the members of the arbitral tribunal and the place and date of the making of the award;
the parties and their addresses (domicile, residence or place of incorporation) as well as the full names of the parties’ representatives and of any other persons who participated in the arbitral proceedings;
reference to the arbitration agreement on which the arbitral proceedings were based;
the subject matter of the dispute and a summary of the parties’ cases;
the de facto and de jure reasons for the award or, in case of an award made ex aequo et bono, the grounds on which the decision is based;
the decisions and orders of the arbitral tribunal; and
the signatures of all arbitrators, in case of a dissenting opinion, although the dissenting arbitrator may sign the award, the award will be valid without such signature.
Ibid, art 603.
7.2.2 Unless otherwise agreed by the parties, the arbitral tribunal shall make its award within six months from the date on which the arbitral tribunal is constituted.
Ibid, art 567(1).
The parties may agree to extend this term
Ibid, art 567(3).
and the term may also be extended by the arbitral tribunal by up to three months if there are good reasons for doing so.
Ibid, art 567(4).
In addition, the CPC sets out circumstances in which the term of the arbitration is extended or suspended automatically as a matter of law, such as when an arbitrator is challenged or a court is called to rule on a matter relating to the arbitration.
Ibid, art 567(2) and (5).
7.2.3 If, once the deadline for rendering an award has passed and the award has not been rendered, either party may notify the arbitral tribunal (in writing) that they are invoking their right to terminate the arbitration. The arbitral tribunal may summon the parties to a hearing in order to confirm the consequences of the termination of the arbitration and that the parties wish to proceed with such course of action, although a hearing is not mandatory. Where a party to the arbitration does not wish to have the arbitration terminated, there are limited grounds for objection (valid grounds would include, for example, that the six-month term has not passed, or was validly extended).
Ibid, art 568(1).
7.2.4 The award must be notified to the parties within one month of being made and, at the request of a party, the arbitral tribunal shall issue a certificate of service. Within 30 days of communicating the final award to the parties, the arbitral tribunal shall deposit the file with the competent court, for archiving purposes, except if the arbitration was administered by a specialised arbitral institution, in which case that arbitral institution archives the file.
7.3.1 The provisions of the CPC relating to arbitral proceedings are silent with respect to the possibility of entering into a settlement. However, based on the general rules of the CPC and of the Romanian Civil Code, parties are allowed to end an arbitrable dispute by a settlement agreement.
7.3.2 Once the parties agree on the terms of the settlement, they may ask the arbitral tribunal to issue an award that includes the terms of the settlement. This award will have the same effect as any final award.
7.4 Power to award interest and costs
7.4.1 The arbitral tribunal is entitled to award interest. If the underlying agreement between the parties makes provision for payment of interest at a certain rate, the arbitral tribunal may award interest at the contractually agreed rate until the date of payment. If no contractual interest has been stipulated, and the Romanian substantive law is applicable to the arbitration, the arbitral tribunal may award legal interest (6% if the payment obligation was established in a foreign currency) or at the official bank rate of the National Bank of Romania plus four points (if the payment obligation was established in Romanian currency).
Government Ordinance 13 / 2011.
7.4.2 The CPC contains detailed provisions in relation to expenses relating to arbitral proceedings, including expenses for:
the administration and conduct of the arbitral proceedings;
the taking of evidence;
the cost of travel for parties, arbitrators, experts and witnesses; and
the arbitrators’ fees.
7.4.3 The CPC provides that such expenses shall be paid by the parties in accordance with their agreement. In the absence of any agreement, they shall be borne by the losing party or, if the claimant is only partially successful, by the parties in proportion to their respective success and failure. Unless the parties agree otherwise, the arbitration expenses payable by the losing party do not normally include the legal fees and other costs of representation of the successful party.
CPC, art 595.
7.4.4 For institutional arbitral proceedings, the arbitration expenses (including the charges for organising the arbitration and the arbitrators’ fees), shall be established and paid in accordance with the rules of the relevant arbitral institution.
Ibid, art 620.
The International Arbitration Court, for example, has detailed provisions in relation to costs in its arbitration rules and has established a fee schedule.
http://arbitration.ccir.ro/wpcontent/uploads/2017/06/Schedules_of_arbitral_fee s_and_expenses.pdf (accessed on the 30th of October 2017).
7.4.5 For international ad hoc arbitral proceedings, if the parties have not agreed otherwise, the fees of the arbitrators and their travel expenses shall be borne by the respective parties that appointed them, unless otherwise agreed. In the case of a sole arbitrator or chair, these expenses shall be shared equally between the parties.
CPC, art 1122.
7.5 Termination of the proceedings
7.5.1 Once all of the evidence has been submitted, the parties will be required to submit their final conclusions on the merits of the case during an oral hearing. Once this final hearing has taken place, the arbitral proceedings are closed and the arbitral tribunal will start the deliberation process.
7.5.2 The CPC requires that in all cases the arbitral tribunal must participate in private deliberations before issuing the final decision, according to the arbitral agreement or, in the absence of an agreement, to the arbitral tribunal.
Ibid, art 602(1).
7.5.3 The award shall be made by a majority of votes. Any dissenting opinion must be recorded in writing and signed by the relevant arbitrator, stating the reasons on which it is based.
Ibid, art 602(3) (4).
7.6 Effect of an award
7.6.1 An award which has been served on the parties has the same effect as a judicial decision; it is final and binding and also enforceable (see further below at section 10).
Ibid, art 606.
7.7 Correction, clarification and issuance of a supplemental award
7.7.1 If the award contains any material errors in the text of the award (e.g. calculations or typographical errors or similar obvious errors), the arbitral tribunal shall correct such errors ex officio or at the request of one of the parties made within ten days of receipt of the award in domestic arbitration. In international arbitration, the term for submitting such a request is 20 days.
Ibid, art 604(4) and 1114(4).
The parties will be notified if the tribunal considers it necessary to do so.
7.7.2 Either of the parties may also request, within ten days of receiving the award, that the arbitral tribunal supplement the award in respect of any claim that was presented to the arbitral tribunal but not dealt with by the arbitral tribunal in its issued award. The arbitral tribunal may only agree to such an additional award after summoning the parties.
Ibid, art 604(3).
7.7.3 Any of the parties may request the arbitral tribunal to provide clarification of the meaning and applicability of the award or to remove potential conflicting provisions contained in the award.
Ibid, art 604(5) (6).
7.7.4 The award of clarification, correction – as well as an additional award – forms an integral part of the award. However, the parties are not obliged to pay any additional costs in respect to such further awards.
8. ROLE OF THE COURTS
8.1 Jurisdiction of the courts
8.1.1 Jurisdiction for applications for court measures in support of the arbitral process generally lies with the court that would have had jurisdiction to determine the merits of the dispute in the absence of a valid and binding arbitration agreement.
Ibid, art 547.
This includes applications:
to remove any impediments that may arise in the administration or conduct of the arbitration;
to appoint or replace arbitrators;
Ibid, art, and 561 and 564.
for interim protective measures;
Ibid, art 585.
for taking of evidence where the attendance of witnesses has to be compelled;
Ibid, art 589.
to review arbitrators’ fees, deposits, advances or other payments required by the arbitral tribunal.
Ibid, art 598.
8.1.2 The court immediately superior to that identified pursuant to article 547 of the CPC, has jurisdiction in respect of applications for:
Ibid, art 547.
setting aside of awards;
See ibid, art 610.
settling any conflict of jurisdiction between the arbitral tribunal and the court identified pursuant to article 547 of the CPC.
See ibid, art 554(3).
8.1.3 Jurisdiction for recognition and enforcement of foreign awards under the provisions of the CPC lies with the county court in the district where the person refusing to fulfil the foreign award has its domicile or place of incorporation, or where the award is to be enforced.
8.2 Rulings on jurisdiction
8.2.1 As stated above at paragraph 5.1, the arbitral tribunal has the power to rule on its own jurisdiction. The arbitral tribunal’s decision on jurisdiction is subject to challenge only once the final award has been rendered (see further below).
8.2.2 Where a party commences court proceedings in relation to subject matter that is covered by an arbitration agreement concluded between the parties, the court shall determine its jurisdiction and will declare its lack of jurisdiction only if the other party invokes the arbitration agreement before the court.
8.2.3 The court retains jurisdiction to decide the dispute on its merits if it finds that:
the arbitration agreement is null and void, inoperative or incapable of being performed;
the respondent has already submitted its defence on the merits (and any counterclaims) without any jurisdictional reservation based on the arbitration agreement; or
the arbitral tribunal cannot be constituted for reasons which fall within the sphere of responsibility of the respondent, for example if the respondent repeatedly appoints arbitrators that it knows will refuse such appointments with a view to causing excessive delay to the constitution of the arbitral tribunal.
See ibid, art 554(2).
8.2.4 Otherwise, the court shall declare at the request of one of the parties that it lacks jurisdiction and refer the parties to arbitration.
Ibid, art 554(1).
In the case of a conflict of jurisdiction between the arbitral tribunal and the court, the appropriate higher court shall decide the issue.
Ibid, art 554(3).
8.3 Interim protective measures
8.3.1 Before or during the arbitral proceedings, any party may request that the court grant interim injunctions or order other conservatory or protective measures related to the subject matter of the arbitration,
Ibid, art 585(1).
or establish relevant factual circumstances (i.e. preserve evidence). A copy of the statement of claim and of the arbitration agreement must be submitted to the court in support of the petition.
Ibid, art 585(2).
The party requesting such measures before the court shall immediately notify the arbitral tribunal once they have been granted by the court.
Ibid, art 585(3).
8.4 Obtaining evidence and other court assistance
8.4.1 Any interested party may institute proceedings before the court which, in the absence of the arbitration agreement, would have had jurisdiction to judge the merits of the dispute at first instance in order to remove any impediments that might arise in the administration or conduct of the arbitration. The court shall settle such petitions summarily and as a matter of priority.
Ibid, art 547(2).
9. CHALLENGING AND APPEALING AN AWARD THROUGH THE COURTS
9.1. Setting aside proceedings
9.1.1 The award may only be set aside following a petition for annulment for the following limited reasons:
the dispute was not arbitrable;
the arbitral tribunal decided the dispute in the absence of an arbitration agreement or on the basis of a void or inoperative arbitration agreement;
the arbitral tribunal was not constituted in accordance with the requirements of the arbitration agreement;
a party was not present when the arbitral proceedings took place and the legal requirements of the summonsing procedure were not complied with;
the award was rendered after expiry of the six month arbitration term provided under article 567 of the CPC for making the award, if one of the parties claimed the arbitration is obsolete and the parties did not agree to continue;
the arbitral tribunal decided matters which were not the subject of the claim, failed to decide upon a claim submitted for decision in the request for arbitration or awarded more than requested;
the award does not include the arbitral tribunal’s decision or does not give reasons, does not state the date and place where it was made or is not signed by the arbitrators; or
the award is contrary to public policy, good morals or mandatory provisions of the law if, after the arbitral award had been rendered, the Romanian Constitutional Court has declared the legal subject matter of an invoked plea unconstitutional.
See ibid, art 608.
9.1.2 The parties cannot waive in advance the right to institute proceedings for the setting aside of the award. Such right may only be waived after the award is made.
Ibid, art 609.
The waiver can be made by way of agreement or unilateral declaration of the party waiving such right.
9.1.3 The appropriate court for proceedings to set aside the award is the court of appeal in whose territorial jurisdiction the arbitration has taken place.
Ibid, art 610.
Proceedings to set aside the award shall be commenced within one month from the date of communication of the award.
Ibid, art 611.
Pending its substantive decision, the court may, after requiring security for an amount fixed by it, suspend the enforcement of the award against which setting aside proceedings have been instituted.
Ibid, art 612.
9.1.4 The court will decide the request in accordance with the provisions of article 613 of the CPC. If the court finds the request justified, it shall set the award aside and either send the dispute to a regular court (provided, for example, that the dispute was not arbitrable) or, at the express request of any party, send the dispute back to the arbitral tribunal for a new judgement; however, if the aforementioned request is not made, and if the dispute is ready to be determined, the court shall make a decision on the merits within the limits of the arbitration agreement. If further evidence is needed before a decision on the merits can be made, the court will request the parties to submit that evidence and make its decision on the merits after that evidence has been submitted.
9.1.5 The judgment of the court on the setting aside of the award is subject to a final appeal before the superior court.
10. RECOGNITION AND ENFORCEMENT OF AWARDS
10.1 Domestic awards
10.1.1 An award is binding and shall be complied with by the party against whom it was made immediately or within the time limit specified in the award.
Ibid, art 614.
If necessary, the successful party may apply for leave to enforce the award.
Ibid, art 615.
10.1.2 Leave for enforcement shall be granted without a hearing. Following the new modifications in the Civil Code, the award may be enforced in the same way as a court judgment.
Ibid, art 615.
The enforceable award represents a writ of execution, based on which, the party in whose favour it was made may request leave for enforcement from the enforcement court, through a bailiff.
10.2 Foreign awards
Arbitral awards subject to international arbitration treaties
10.2.1 Romania ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) in 1961 and is also a party to the 1961 European Convention on International Commercial Arbitration (as well as other international arbitration conventions and treaties). The vast majority of foreign awards will be subject to the provisions of one of these treaties.
10.2.2 When signing the New York Convention, Romania stated that it will apply the New York Convention only to the recognition and enforcement of awards made in the territory of another contracting state. Also, Romania will apply the New York Convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law. With regard to awards made in the territory of non-contracting states, Romania will apply the New York Convention only to the extent to which those states grant reciprocal treatment.
10.2.3 If no multilateral or bilateral treaty applies, the procedure for recognition and enforcement of foreign awards is set out in Romanian law. However, in practice, even if the award is subject to international treaties, the Romanian courts apply a mixture of the conditions set forth in the international convention and CPC. In any case, as set forth below, the provisions regarding the recognition and enforcement of awards represent, in general, a duplication of the provisions contained in the New York Convention.
10.2.4 An award is considered foreign if it was made in the territory of a foreign state. Foreign awards acquire the force of res judicata in Romania if they are recognised pursuant to article 1127 of the CPC. A foreign award is recognised and enforced in Romania if the subject matter can be submitted to arbitration in Romania and if it does not contain provisions against the public policy of Romanian private international law.
Ibid, art 1125.
10.2.5 Foreign awards may be recognised either directly pursuant to an application for recognition or indirectly if they are relied upon in different substantive proceedings pending in the Romanian courts.
CPC, art 1127(2).
Foreign awards made by a competent arbitral tribunal have evidential force before the Romanian courts with regard to the facts which they establish, regardless of whether they are formally recognised.
Ibid, art 1131 and 1108.
10.2.6 Foreign awards granting interim measures of protection or awards which are only provisionally enforceable cannot be enforced in Romania.
Conditions for the recognition and enforcement of a foreign award
10.2.7 Pursuant to the CPC, foreign awards may be recognised and enforced in Romania, provided that the dispute was arbitrable under Romanian law and that the award does not contain provisions violating the public policy of Romanian private international law.
10.2.8 The recognition and enforcement of a foreign award may be refused in any of the following situations listed in the CPC:
the parties could not enter the arbitration agreement, according to their own legal requirements, established on the basis of the law of the state where the award was rendered;
the arbitral agreement was invalid according to its applicable law chosen by the parties or, if the parties did not agree on such law, according to the law of the state where the award was rendered;
the party opposing the award was not informed of the appointment of the arbitrators or in relation to the arbitral proceedings or was unable to defend itself in the arbitral proceedings;
the constitution of the arbitral tribunal or the arbitral proceedings were not in accordance with the parties’ agreement, or in the absence of an agreement, in accordance with the law of the place of arbitration;
the award rules upon a dispute that was not included in the arbitral agreement or exceeds the limits provided therein. However, if the issue outside the arbitral agreement may be separated, the remaining provisions of the award may be recognised and enforced;
the award is not yet mandatory for the parties or was annulled or suspended by a competent authority in the state in which it was rendered.
10.2.9 It should be noted that the Romanian courts may not re-examine the merits of the foreign award or modify it.
Ibid, art 1133.
Procedure for recognition and enforcement of a foreign award
10.2.10 The request for recognition and enforcement of a foreign award must be drawn up in accordance with the requirements of Romanian procedural law and must be accompanied by the following documents:
a copy of the foreign award; and
a copy of the arbitral agreement.
10.2.11 All documents need to be accompanied by authorised translations and authenticated by the competent authority in the state of the foreign arbitral tribunal, by the relevant Romanian consulate and by the Romanian Ministry of Foreign Affairs.
Ibid, art 1128.
Romania is a party to the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Hague Convention) so less cumbersome requirements would apply to documents issued in states that are also signatories of the 1961 Hague Convention.
10.2.12 The request for recognition and enforcement will be resolved in adversarial proceedings (ie the respondent will be summonsed and will be allowed to state his or her defence), but limited strictly to the grounds referred to in para. 10.2.8 upon which recognition of the foreign award may be resisted. The request for recognition may be determined without hearing the parties if it follows from the award that the respondent admitted the claim.
Ibid, art 1131.
The court decision on recognition is subject to one tier of appellate jurisdiction.
10.2.13 Once recognition and enforcement of the foreign award in Romania has been authorised, such an award may be enforced in the same way as a domestic award.
Ibid, art 1127.
11. SPECIAL PROVISIONS AND CONSIDERATIONS
11.1.1 There are no specific legal provisions with respect to arbitration of disputes relating to consumer rights. Therefore, the consumer is free to enter into an agreement to arbitrate a dispute relating to his or her consumer rights (prior to or after a dispute has arisen). However, due care has to be taken when entering an agreement including an arbitration clause, as the standard for assessing the abusive nature of contractual clauses in the case of a consumer is higher. If the contract is deemed non-negotiated, it may consequently be held that the arbitration clause is ineffective.
11.2 Employment law
11.2.1 Only collective labour disputes are arbitrable and not individual labour disputes. In accordance with the provisions of article 179 of Law No 62 / 2011 of the social dialogue, if the parties agree, the disputes are subject to arbitration organised by the Office for Mediation and Arbitration of Collective Labour Disputes attached to the Ministry of Labour, Family and Social Protection. The awards rendered under the auspices of this office are binding upon the parties, will amend the collective labour agreement and are enforceable.