Selected statistics regarding the state of commercial arbitration in Romania^[1]

Cornelia TĂBÎRŢĂ^[2]
Țuca Zbârcea & Associații, Bucharest
​​​cornelia.tabirta@tuca.ro

Introduction

The scope of this paper is to publicise a series of official statistics regarding institutional arbitration in Romania and setting aside proceedings resolved by Romanian courts. 

To the best of the author’s knowledge, information regarding the state and development of commercial arbitration in Romania is scarce, being mostly based on anecdotal evidence. For this reason, the author hopes that the statistics herein will be useful tools for practitioners and users of arbitration, and an incentive for similar efforts in the future.

The data presented herein were collected and published within a project co-financed by the European Social Fund and implemented by the Superior Council of Magistracy in cooperation with the General Secretariat of the Romanian Government, having the larger scope to decrease the caseload of State courts (the “Project”). Within this ambit, the author was part of the team of experts Project tasked to redefine the Romanian legal framework applicable to alternative dispute resolution methods.

Statistical data collected within the Project regarded a series of illustrative indicators for commercial arbitration in Romania. On the one hand, the focus was on institutional arbitration administered by the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania (“CICA”), the oldest and most popular arbitration institution in Romania.^[3]  On the other hand, another point of focus was the setting aside proceedings in terms of the number of cases and the length of the proceedings.

Institutional arbitrations seated in Romania 

As provided above, CICA is the oldest and most popular arbitral institution in Romania, functioning since 1953 and guiding the activity of the arbitration courts attached to the county chambers of commerce.^[4] CICA-administered arbitrations have an important place in the development of commercial arbitration in Romania, therefore statistics on arbitrations administered by this institution are illustrative to assess the number of disputes resolved by arbitration, the nature of the disputes in terms of the industry sectors, the average length of the arbitration proceedings, the level of support that CICA-administered arbitrations benefit from the judicial power, etc. 

For the purposes of the Project, data has been primarily collected from CICA, for the reference period 2017-2019. Other four courts of arbitration attached to the county chambers of commerce and industry have also provided information for the same reference period.^[5] Where the context so requires, reference will be made to the data provided by these county courts of arbitration as well.

Number of cases registered

Total number of cases

Between 2017-2019 (1) 402 cases were registered at CICA level, and (2) 218 cases were registered at the level of the four arbitration courts attached to the county chambers of commerce and industry that provided information for the research.^[6] 

The data is captured in the table below:

No. of cases	2017	2018	2019	Total
CICA	158	119	125	402
Four local courts of arbitration	77	63	78	218

In terms of the arbitrations seated in Romania, figures published by international arbitration institutions are also of interest. For the purposes of this paper the author verified the statistics of five major international arbitration institutions from the region, namely the ICC, LCIA, SCC, SAC^[7] and VIAC^[8]. Of the five selected institutions, only the ICC and LCIA reports include statistical data that provide separate data for arbitrations seated Romania, and of the two institutions, only the ICC administered cases with the place of arbitration in Romania.^[9] 

The statistics published by the ICC for 2017-2019 reflect the following conclusions: 

• ICC administered a total of 24 arbitral cases with the place of arbitration in Romania.
• The number of such cases had a downward trend - 12 cases in 2017, 9 cases in 2018, 3 cases in 2019. 

As the reach of such institutions is mostly global or regional, it is equally interesting to see to what extent Romanian parties tend to opt for the rules of these institutions, regardless of the place of arbitration. Turning back from this angle to the statistics published by the selected international arbitration institutions for 2017-2019, the following are noteworthy: 

• ICC – 77 Romanian nationals (31 in 2017, 27 in 2018, 19 in 2019).
• LCIA – Romanian nationals accounted for 0.4% of the cases in 2019,^[10]  with no separate data for Romanian nationals being provided in 2017 and 2018.^[11] 
• VIAC – 6 Romanian nationals (1 in 2017, 2 in 2018, 3 in 2019).
• SAC – 2 Romanian nationals (1 in 2017 and 1 in 2019).^[12]

Cases registered under a submission agreement

The number of cases where the parties opted for arbitration through a submission agreement appear to be extremely rare: 

• At the level of CICA, during the reference period there have been no cases registered based on a submission agreement. 
• There were few cases registered at the level of one court of arbitration attached to a county chamber of commerce and industry, namely 4 cases in 2019, and 5 cases in 2017.

Cases which have been transferred from the State courts

According to Romanian procedural law, if a State court is seized with a dispute in relation to which an arbitration agreement has been concluded, it must decline jurisdiction if one or more parties so requests by relying on the arbitration agreement. Whereas in case of ad hoc arbitration, the court must reject the application as not falling within its jurisdiction, in case of institutional arbitration, the State court must decline jurisdiction in favour of the arbitral institution and the latter shall, based on the court decision declining jurisdiction, take the necessary measures to constitute the arbitral tribunal. From an administrative standpoint, in case of institutional arbitration, after declining jurisdiction, the State court effectively transfers the file to the arbitral organization or institution. 

The number of cases transferred from State courts to arbitral institutions under the procedural provision described above between 2017-2019 is as follows: 

• At CICA level, 63 cases were transferred from State courts, accounting to approx. 16% of the total number of cases registered in the reference period (402 cases). 
• At the level of the four county courts of arbitration, a number of 18 cases were transferred from State courts, accounting to approx. 8% of the total number of cases registered in the reference period (218).
• From 2017 to 2019, the number of cases transferred from State courts recorded a downward trend, as pictured in the table below: 

No. of cases	2017	2018	2019	Total
CICA	42/158	13/119	8/125	63/402
Four local courts of arbitration	4/77	8/63	6/78	18/218

Nature of disputes

CICA reported that most of the registered cases were construction arbitrations.^[13]  Noteworthy, the number of CICA arbitrations with this profile is expected to increase due to the Government Decision no. 1/2018 for the approval of the general and particular conditions of contract for certain categories of public procurement contracts related to publicly funded investment objectives (“GD no. 1/2018”) which refers to CICA Rules of Arbitration.^[14] 
The four county arbitration courts which provided information indicated that most of the cases registered in the reference period came from sectors such as (1) IT services,^[15]  (2) construction, (3) services, (4) agriculture, (5) the maritime domain,^[16]   (6) real estate.

The average length of arbitral cases resolved between 2017-2019

The average length of CICA-administered arbitrations was 6-12 months in 2019 and 2018, and 7-10 months in 2017. 

At the level of the arbitration courts attached to the county chambers of commerce, the average length of the arbitration proceedings during the reference period was less than 6 months.

Expedited procedure and emergency arbitrator proceedings

The current CICA Rules (in force since 1 January 2018) incorporate Special Rules for Expedited Arbitration applicable to small-value cases (up to RON 50,000 i.e. around EUR 10,000) and when the parties so agree (Annex V to the CICA Rules),^[17]  as well as emergency arbitrator rules (Annex II to the CICA Rules).^[18] 

CICA provided information on the use of the two procedures since 2018, as further described below.

Emergency arbitrator provisions

• 8 requests registered between 2018-2019 – 3 requests in 2018 and 5 in 2019. 
• The average length of the proceedings was 20 days. 

Special rules for expedited arbitration: 

• 6 cases registered between 2018-2019 – 1 case in 2018 and 5 cases in 2019. 
• The average length of the proceedings was 3 months (the time limit provided by the CICA Rules for these proceedings).^[19]

Outcome of setting aside requests

Most States that recognize and promote arbitration as an alternative method of resolving disputes recognize the finality and the binding nature of arbitral awards. This is also the case for Romania. Under the Romanian procedural law, arbitral awards are final and binding, they can only be challenged within the setting aside proceedings and only for the limited reasons provided by Civil Procedure Code. The arbitral award is enforceable and commencing setting aside proceedings does not affect in itself the finality and enforceability of the arbitration award. 

The information reported by CICA and the four county arbitration courts reflects the following: 

• 91 setting aside requests have been filed against the arbitral awards issued between 2017-2019. 
• Out of the 91 setting aside requests, 89 were rejected, with only 2 setting aside requests being granted; this represents a 98% rejection rate, as pictured in the chart below:^[20]

• the outcome pictured above reflects the final decision issued in setting aside proceedings i.e., including the outcome of the final appeals resolved by the High Court of Cassation and Justice of Romania.
  Although the chart above reflects the outcome of setting aside requests for only part of the arbitral awards issued in Romania the rejection rate of 98% is an important indicator that in Romania, at least compared to the data reported by these arbitral institutions, arbitration as an ADR mechanism enjoying the support of the judicial power transposed in minimum intervention on the merits of the case. 

Setting aside proceedings

Under Romanian procedural law, setting aside proceedings are resolved by the court of appeal in whose jurisdiction the arbitration was seated. The decision of the court of appeal can then be subject to the final appeal resolved by the High Court of Cassation and Justice of Romania. 

The statistics in this section offer a glimpse of the (1) number of setting aside requests registered between 2017 to 2020 with the courts of appeal (Section III.A), (2) the average length of the setting aside proceedings resolved between 2017 to 2020 (Section III.B), (3) similar statistics regarding final appeals resolved by the High Court of Cassation and Justice of Romania (Section III.C). 

As opposed to the statistics from Section II above which reflect data of CICA and four other arbitral institutions from Romania, the statistics from this section reflect the data from State courts, collected from the statistical software developed at the level of the Romanian Superior Council of Magistracy.^[21]  

The reference period for the data below is 2017-2020. 

Number of setting aside requests registered with the Romanian courts 

The data collected for 2017-2020 reveals the following: 

• 344 setting aside requests were filed at national level before the 15 courts of appeal in Romania.
• Out of the 344 setting aside requests, around 74% were registered before the Bucharest Court of Appeal (“Bucharest CA”) (252 requests), which confirms that most of the arbitrations in Romania are seated in Bucharest.
• Between 2017 to 2019, the number of setting aside requests at both national level and at Bucharest CA level had a downward trend. 
• In 2020, the number of setting aside requests increased exponentially compared to the number of setting aside requests registered in the previous year: by around 74% at national level, respectively by around 109% at Bucharest CA level.

The above conclusions are reflected in the following chart: 

The average length of the setting aside proceedings resolved by the courts of appeal 

Speed is often indicated as an important advantage of arbitration and more often than not it is linked to the length of the arbitration proceedings. This is understandable seeing as arbitration is meant to be the first and only stage for resolving the merits of the dispute. 

At the same time, the need for predictability regarding the length of the proceedings does not stop with the issuance of the arbitral award, whether we talk about the winning party wishing to have the legal status of the arbitral award clarified as soon as possible, or about the losing party seeking to dispute the legality of the arbitral award and overturn the outcome of the case. Therefore, the average length of the setting aside proceedings is valuable information that arbitration users need to and very often want to know.

The data collected for 2017-2020 from Romanian courts reveal the following:

• The average length of the setting aside proceedings at national level was between 6.2 and 9.9 months.
• The average length had a downward trend, with the shortest average length being recorded in 2020, i.e. 6.2 months.
• At both national and at Bucharest CA level, the year in which the shortest average length was recorded (2020), coincides with the year in which most setting aside requests were filed.  

The conclusions above are captured in the following chart:

Final appeals resolved by the High Court of Cassation and Justice of Romania

The data collected for 2017-2020 reveals the following: 

• 170 final appeals were registered against the decisions of the courts of appeal issued in the setting aside proceedings.
• The number of final appeals registered in the reference period is significantly lower than the number of setting aside requests registered at national level in the same period, i.e. by around 50% (170 final appeals vs. 344 setting aside requests); a potential explanation for this data could be the low rate of admission of setting aside requests, thus discouraging the parties from challenging the decisions of the courts of appeal. 
• Between 2017-2019 the number of final appeals registered with the HCCJ had a downward trend, whereas in 2020 the number increased substantially compared to that recorded in 2019, namely by around 50%. This trend is similar to the one regarding setting aside requests filed with the courts of appeal in the same reference period (see Section III.A above).  

The conclusions above are reflected in the following chart: 

As regards the average duration of final appeals resolved by High Court of Cassation and Justice of in setting aside proceedings, statistics reveal that: 

• The average length of final appeals in the reference period was between 16 and 18.5 months. 
• Between 2017 and 2018, the average length was approx. 16 months, with an upward trend between 2019-2020 i.e. towards 18 months in 2019 and 18.5 months in 2020.

Conclusions

Besides the widely known benefits of arbitration for the arbitration users and the importance of party autonomy, the core pillar of arbitration is trust from the State powers. Trust from the legislator transposed in a legal framework conferring arbitration legitimacy and effectively encouraging the resolution of disputes through arbitration. Trust from the judiciary by minimum court intervention in setting aside proceedings.

The support of arbitration from these State powers is the main catalyser for the development of arbitration in a particular legal system, with direct consequences for the justice system and the economic environment.

In Romania, arbitration benefits from support both at the level of the legislative power, with the legislation having a pro-arbitration stance, and at the level of the judicial power confirmed at least by the limited rate of granting setting aside requests (based on the data described above).

There are various ways for increasing the disputes resolved through arbitration, from individual efforts meant to increase awareness and confidence to legislative reforms. For the purposes of this paper however, the author considers it important to emphasize the need of strengthening the transparency of the statistical data both at the level of arbitral institutions and at the level of State courts by making easily available such data among arbitration users and practitioners. 

The effort should be joint and sustained, involving all participants in the arbitral process e.g., lawyers, arbitrators, involvement from academia, State courts, arbitral institutions, etc. In particular, regular publication of statistics regarding setting aside proceedings resolved by Romanian courts and also of the requests for court assistance in the arbitral process would be invaluable. The author believes that the impact of such statistics being made available on a regular basis by the bodies of the judicial power would go beyond transparency considerations. The support and trust from the judicial power is one of the basic pillars of arbitration and a sustained vote of confidence for arbitration could not only strengthen the trust in this alternative dispute resolution mechanism but could also improve the overall access to justice. 
 

^[1]This paper was initially published in a more extended format in the Romanian Arbitration Journal, no. 4/2021, Year 2015, in Romanian language. Romanian Arbitration Journal is a Wolters Kluwer publication indexed in Kluwer Arbitration.

^[2]Cornelia Tăbîrță is a Managing Associate with Țuca Zbârcea & Associații lawfirm (https://www.tuca.ro/), specializing in domestic and international commercial arbitration. Cornelia Tăbîrță has a Law Degree from the Faculty of Law of the University of Bucharest, and a Master’s Degree in International Commercial Arbitration from the same Faculty of Law. She is a member of the Bucharest Bar Association since 2011.

^[3] For further details, see https://arbitration.ccir.ro/en/, accessed on 1 July 2022. The current CICA Rules of Arbitration are in force since 1 January 2018. Also, at the end of 2020, CICA has published a Guide for using the CICA Rules, meant to facilitate their implementation by the arbitration users and to ensure their unitary interpretation. For further details, see B. Oglindă, S. Olaru, C. Popa, coord., Guide to CICA Arbitration Rules, Wolters Kluwer Publishing House, Romania, 2020. 

^[4]There are 41 county chambers of commerce and industry in Romania.

^[5]The four courts of arbitration which provided information are the following: (1) the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry Cluj, (2) the Court of Commercial and Maritime Arbitration attached to the Constanța Chamber of Commerce, Industry, Navigation and Agriculture, (3) the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry Iași, (4) the Court of Arbitration attached to the Chamber of Commerce and Industry of Dolj County.

^[6]Over 60% of the cases (145 cases) registered with the four county courts of arbitration were reported by the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry Cluj.ringing an investment dispute before WTO or ICJ is perceived to bring the issue to a political level. Sergio Puig and Gregory Shaffer, ‘Imperfect Alternatives: Institutional Choice and The Reform of Investment Law’ (2018) AJIL 361, 394.

^[7]The Swiss Arbitration Centre, successor of Swiss Chambers’ Arbitration Institution starting with 1 June 2021. See for details https://www.swissarbitration.org/new-swiss-arbitration-centre-and-revised-swiss-rules/, accessed 1 July 2022.

^[8]Statistics of these institutions are available on the following websites: (1) the ICC – https://iccwbo.org/, (2) LCIA https://www.lcia.org/lcia/reports.aspx, (3), SCC - https://sccinstitute.com/statistics/ (4) SAC - https://www.swissarbitration.org/resources/, (5) VIAC - https://www.viac.eu/de/ueber-uns/statistiken, accessed on 1 July 2022.

^[9](1) VIAC statistical reports do not provide separate data considering the place of arbitration. (2)  While the SCC reports provide data on the place of arbitration, the focus seems to be on arbitrations seated in Sweden (e.g., SCC statistics distinguish between arbitration seated in Stockholm, Göteborg). As provided in SCC statistical reports, seats outside of Sweden remain relatively rare in SCC arbitrations. (3) For SAC reports, as with the SCC reports, data on the seats of arbitration is provided only for arbitrations seated in Switzerland (e.g., Geneva, Zürich). SAC reports indicate a general percentage for arbitrations seated outside Switzerland (in 2019, the percentage was 5%). For SAC, the conclusion reflects the data from the report available for 2019 on the https://www.swissarbitration.org/, accessed on 1 July 2022.

​​​​​^[10]For 2019, the files administered by the LCIA with parties from Central and Eastern Europe accounted for 2.2% of total cases, data being presented in three subcategories (1) Romania – 0.4%, (2) Poland – 0.6%, (3) other Central and Easter European countries – 1.3%..

^[11]For 2017-2018, the files administered by the LCIA with parties from Central and Eastern Europe accounted for 4.9% in 2017 and 2% in 2018, with data presented in only two subcategories (1) Czech Republic 0.5% in 2017 and 2018, (2) other Central and Eastern European countries– 4.4% in 2017 and 1.4% in 2018.

^[12]ISAC reports present statistical data on the origin of the parties from a regional perspective, without any breakdown. In the cases registered in 2019, parties from Eastern Europe accounted for 5% of the cases.

^[13] International Federation of Consulting Engineers - https://fidic.org/, accessed on 1 July 2022. 

^[14]Published in the Official Gazette of Romania, Part I, no. 26 of 11 January 2018. See clause 70.3 of Annexes nos. 1 and 2 of GD no. 1/2018, as amended and supplemented. The GD no. 1/2018 provides the right of option between the State courts or CICA administered arbitrations. The general and particular conditions of contract approved through GD 1/2018 are applicable to public procurement contracts with a value equal or over EUR 5,382,000.

^[15]Reported by the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry Cluj.

^[16]Reported by the Court of Commercial and Maritime Arbitration attached to the Constanța Chamber of Commerce, Industry, Navigation and Agriculture. Constanta is a Romanian city located on the Black Sea coast.

^[17]For a comparative review of expedited proceedings in the rules of major arbitral institutions and how they have been reflected in CICA Rules, see C. Tăbîrță, Expedited proceedings – a less imperfect balance for “small” claims, Parts I, II and III, in the Romanian Arbitration Journal, no. 2/2020, pp. 46-82, no. 3/2020, pp. 74-130 and no. 4/2020, pp. 87-101.

^[18]For more details on the emergency arbitrator procedure in CICA Rules, see C. Popa, C. Tăbîrță, New Rules on the Emergency Arbitrator. Linking Theory to Practice, in Romanian Arbitration Journal no. 1/2019, pp. 46-76; B. Oglindă, Jurisprudential Challenges in the Application of the Emergency Arbitrator Procedure, in Romanian Arbitration Journal no. 1/2019, pp. 77-86; R. Petrescu, A. Stan, The Emergency Arbitrator in the Romanian Landscape. A Comparative Perspective, in Romanian Arbitration Journal no. 1/2019, pp. 23-45..

^[19]See Article 4 of Annex V to the CICA Rules.

^[20]The data includes all the setting aside requests rejected on both procedural grounds and on the merits.

^[21]In Romania, requests for setting aside of arbitral awards are mainly resolved by the civil divisions of the courts having jurisdiction to resolve disputes between professionals. The statistics herein therefore reflect the setting aside proceedings resolved by the civil divisions of the courts in the reference period.

Noteworthy, during the research it has been found that setting aside requests were also submitted with the administrative divisions of the courts of appeal, with a significant number of these files being transferred back to the civil divisions of the courts.