Decision of the Bucharest Court of Appeals in the First Emergency Arbitrator Procedure in Romania. A New Success of NNDKP

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The Emergency Arbitrator Procedure was unknown in the Romanian arbitration practice until the beginning of 2018, when it was introduced in the New Procedural Rules of the Romanian Chamber of Commerce and Industry (CCIR).

In the first case brought to the attention of CCIR using the aforementioned procedure, the Emergency Arbitrator admitted the request for interim measures filed by a company active in the energy production sector and suspended the claimant’s payment obligations under several lease agreements.

The defendant – the leasing company – was represented by NNDKP and challenged the decision of the Emergency Arbitrator by filing a motion for annulment before the Bucharest Court of Appeals, in support of which both procedural and substantive arguments were raised.

From a procedural perspective, one of the arguments raised referred to the unlawful constitution of the Arbitral Tribunal in the form of an Emergency Arbitrator panel although the parties agreed in the arbitration agreement that any disputes between them would be settled by an Arbitral Tribunal composed of 3 arbitrators, as well as to the lack of jurisdiction of the Arbitration Court to analyze claims raised against a debtor who is subject to an insolvency proceeding. Furthermore, the deliberations between the parties also addressed the issues of the temporal application of the arbitration procedural rules, of the incompatibility of the arbitrator and of the substantive conditions for the interim measures, etc.

From a substantive perspective, the issues raised referred to the failure to fulfill the conditions for granting protective measures in the form requested by claimant.

By the decision rendered on June 7, 2018, the Bucharest Court of Appeals admitted the motion for annulment and annulled the interim measures taken by the Emergency Arbitrator.

The client was represented in the case concerning the motion for annulment by Sorina Olaru, Partner, and Daniela Ghervas, Senior Associate, from the Dispute Resolution department.

“This decision comes after another recent success of NNDKP, likewise in an Emergency Arbitrator Procedure, but before the Arbitration Court. As I declared on that occasion as well, these cases have shown that the rules concerning the Emergency Arbitrator Procedure may give rise to complex debates, both on procedural and substantive matters. Under the circumstances, we are pleased with the decision rendered by the Bucharest Court of Appeals, which, reflecting the first analysis made by a court of law with regard to the Emergency Arbitrator Procedure, will be a benchmark decision in this field”, declared Sorina Olaru, Partner, arbitrator and member of the Management Board of the Court of International Commercial Arbitration of CCIR.

NNDKP’s Litigation Practice coordinated by Ana Diculescu-Șova is independently recognized as a force in the area of dispute resolution, being constantly top-ranked by reputed international guides such as Chambers and Partners (the European edition) since 2007, and The European Legal 500 guide since 2002. With 10 Partners coordinating a team of over 50 litigators active in Bucharest and in the other four regional offices (Timisoara, Cluj-Napoc, Brasov and Craiova), NNDKP has the necessary resources to handle complex cases, which include several parties or extend over many years, and can offer sustainable strategies in order to mitigate potential future risks.

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