Contributed By Zamfirescu Racoți & Partners Attorneys at Law (ZRP)
Romania’s legal system is based on civil law, following an inquisitorial model in which the court is actively involved in investigating the case, being able to address questions to the parties, decide upon the necessity of particular evidence, invoke procedural incidents, etc. The court is also responsible for leading the hearings. Several principles govern the development of a trial, among which are the equality of the parties, the adversarial proceedings, the parties’ right to a fair trial, and the legality of the proceedings.
The proceedings commence when a claim is submitted by the plaintiff in court. This is followed by a phase of written submissions, in which the claim is communicated to the defendant, which in its turn files a statement of defence, to which the plaintiff files a reply. After the written phase, the judge schedules the first hearing, which marks the start of the oral phase, in which the parties discuss any preliminary aspect and the evidence to be admitted by the court, and present their oral arguments.
The Romanian court system comprises the following subdivisions: the first court (located in the main towns), the Tribunal (located in every county), the Court of Appeal (corresponding to larger regions) and the High Court of Cassation and Justice (the highest jurisdiction in Romania). Depending on its nature or size, a claim may be settled in the first instance by any of these courts, except for the High Court of Cassation and Justice, which is solely an appeal court (with some exceptions in special matters). Most of the courts have different divisions corresponding to general subject matter categories, for example civil, administrative and criminal.
As a rule, from the point of view of the hierarchy of courts, a claim that has been settled in the first instance by the first court will be subject to appeal at the Tribunal and to a second appeal at the Court of Appeal. Similarly, a claim that has been settled in the first instance by the Tribunal will be subject to appeal at the Court of Appeal and to a second appeal at the High Court of Justice. A claim settled in the first court before the Court of Appeal will be subject to (final) appeal at the High Court of Justice. No omission of either of these jurisdictions is acceptable in the course of appeals.
However, following a major modification of the Romanian Civil Procedure Code, which came into force on 15 February 2013 (New Civil Procedure Code), there have been some changes to the civil court system. Previously, any litigation case would normally go through all three degrees of jurisdiction described above. Under the new provisions, most claims will be settled only in the first instance and appeal: that is, in two degrees of jurisdiction; however, if a claim is important enough by virtue of either its nature or size, a second appeal will be open. It should be mentioned that during the transition phase from the former Civil Procedure Code to the New Civil Procedure Code, all the situations described above are possible, depending on the date on which the claim was first filed.
There is one judge in the first instance, two judges in appeal and three judges in second appeal, with some exceptions in special matters.
Specialised courts, as well as specialised sections within the courts, exist in matters such as labour law, administrative and fiscal law, insolvency, etc.
As a rule, court hearings are held in public sessions. In particular cases, the law provides that some types of claims are to be settled only in the presence of the parties. In addition, following a grounded request of a party, the court itself may instruct that hearings are only held in the presence of the parties.
Under the provisions of the New Civil Procedure Code, the trial has been divided into two phases. The administration of evidence and debate of any prior issues necessary for the settlement of the case are now to be held behind closed doors and only in the presence of the parties, and only the closing arguments will be held in public sessions. However, for organisational reasons and due to a lack of space, at present the applicability of such provisions has been delayed until 2019.
Court documents are only available to the parties in the trial and their representatives. To study a file, applicants must present an identification document proving their capacity. Under specific conditions provided by the law, members of the press or third parties proving they bear an interest in relation to the file may study court documents.
There are no particular requirements for legal representatives appearing before Romanian courts. Legal representatives have rights of audience before any type of court.
The members of a bar from a foreign country may provide legal counselling on Romanian law after undertaking an exam on the Romanian law and language organised by the National Association of Romanian Bars. A foreign lawyer practising law in Romania has the obligation to register with the special table of each local Bar Association. However, a foreign lawyer does not have rights of audience before Romanian courts, except for international arbitration courts.
Litigation funding by a third party is not officially provided for within the Civil Procedure Code. Therefore, third party funding of the proceedings is permitted as there is no provision interdicting such procedure. However, third party funding is not frequently used in Romania. The third party funding will be governed by the agreement concluded between the funder and the beneficiary. Such an arrangement does not affect the procedural frame unless the third party purchases the rights stemming from the claim and becomes a party in the trial. In this case, there are certain cases in which certain third parties cannot purchase the rights stemming from the claim.
There are no limitations to the types of lawsuits available for third party funding, unless the third party purchases the rights stemming from the claim and becomes a party in the trial, in which case certain interdictions related to the profession of the third party and the object of the claim might apply. For example, judges, prosecutors and other judicial participants in a civil trial may not acquire the litigious rights that fall under the jurisdiction of the court in which they exercise their profession.
Third party funding is available to both the plaintiff and defendant.
Third party funding generates private law effects between the third party and the beneficiary, the limits of the amounts funded being subject to the agreement between the third party and the beneficiary, there being no law provision regulating these limits.
The costs funded will be established in the agreement between the third party and the beneficiary and vary depending on the object matter, the value of the litigation file, etc. Usually, a third party funder will cover costs such as stamp fee, lawyers’ fees.
The legal provisions regulating the relationship between lawyers and clients forbid a pactum de quota litis. However, the parties to the legal assistance contract are free to set any combination of fixed or hourly fees and success fees, the latter being due from the client only if a certain result is reached.
The legal provisions do not impose any time limits by when a party to the litigation should obtain third party funding.
In particular cases expressly established by the law, preliminary procedures are compulsory. These procedures may consist in conciliation (for example in administrative disputes) and inquiries at the notary public (for example in inheritance disputes), and proof of fulfilment of these procedures will have to be attached to the action submitted to court. The potential defendant is not bound to respond to an invitation to conciliation, hence there are no penalties for failing to comply. In such a case the mere invitation to conciliation will count as proof of the fulfilment of the pre-trial conciliation procedure.
In addition, contracting parties may agree that preliminary procedures are to be followed pre-litigation. Other than such legal and contractual preliminary procedures, no pre-action exchange of documents may be considered to be a preliminary step for bringing an action.
The purpose of the statute of limitations is to protect the material right of action. As a rule, claims having a pecuniary object are subject to the statute of limitations. The time limits for bringing civil claims differ, according to the nature of the claim and the subjective right at the basis of the claim. Generally, these limits range from six months to ten years, the general term being three years. Time limits are treated as a substantive law matter.
The statute of limitations does not operate ex officio; instead, the objection of limitation can only be invoked within the applicable terms (which differ according to the category of the right) before the first court, during the first court hearing at the latest. Before the commencement of the statute of limitations period, the parties cannot renounce the effects of the statute of limitations, as this is only possible after the commencement of the period. The parties may contractually agree to suspend time limits. Until the adoption of the New Civil Code (in force since 1 October 2011), according to the former legal provisions on limitation (which still govern legal relationships entered into before 1 October 2011), rules on limitation and its course were imperative and the parties could not derogate from them at their own will, although the law described a small number of cases where limitation could be suspended or interrupted.
A limitation period that starts on a particular day will be considered to be fulfilled on the corresponding day of the year/month in which the limitation term expires. During the course of the limitation period, several judicial or factual events may cause the suspension or the interruption of the limitation period.
A claim may be initiated against a person that has capacity to stand trial, namely both the capacity to have rights and the capacity to exercise those rights. The capacity to have rights is fulfilled in the case of a natural person if that person is alive and in the case of a moral person if the company is duly registered with the trade registry. As far as the capacity to exercise rights is concerned, a natural person has full capacity to exercise his or her rights when turning 18 years old. A natural person aged between 14 and 18 years old needs to be assisted in trial and a natural person aged less than 14 years old needs to be represented in court by his or her legal guardian.
As a rule, the plaintiff must file a claim to the court whose jurisdiction covers the area where the defendant is domiciled if the defendant is a natural person, and where the premises of the defendant are located if the defendant is a moral person. The court’s jurisdiction is not affected by the defendant’s change of residence/premises taking place after the claim was filed by the plaintiff. The appeal and second appeal are to be settled by the corresponding superior courts of the first-tier court. Different rules apply in case the domicile or premises of the defendant are not known by the plaintiff. There are also certain exception where, depending on the subject matter of the dispute, the claim must be filed to a different court than the one whose jurisdiction covers the area where the domicile/premises of the defendant are located. For example, in tort claims, a court has jurisdiction if the tort was committed in the area covered by the court jurisdiction, regardless of whether the defendant's domicile is in Romania or in a different country.
If there are multiple defendants, it suffices that one of them has the domicile/premises in the court jurisdiction in order for that court to have jurisdiction to settle the claim.
The only difference between courts in terms of jurisdictional requirements is according to the complexity and value of the claim (different subject matters and values trigger the jurisdiction of different courts) or certain qualities of the parties (for example, a claim against a central public authority/institution is settled by a different court than a claim against a local public authority/institution).
The initial complaint must comprise the following elements: (i) the identity of the parties; (ii) the name of the plaintiff’s representative and proof of its powers of representation; (iii) the claim and its value; (iv) the factual and legal grounds of the claim; (v) the evidence supporting the claim; and (vi) the signature of the plaintiff’s representative.
As a rule, the claim may be amended up until the first court hearing. After this moment, amendments are only permitted with the other party’s consent.
After verifying the fulfilment of the formal conditions of the claim, the judge organises the communication of the claim to the defendant as the service of the claim is the responsibility of the court, regardless of whether the defendant’s domicile falls into the court’s jurisdiction or not. The communication of the claim is accompanied by a note obliging the defendant to submit a statement of defence within, generally, 25 days from the communication of the claim (a shorter term may apply in special cases).
As a rule, any communication of procedural documents is fulfilled by the court’s procedural agents or other employees. If this is not possible, the communication is made by mail, with a receipt confirmation.
The service may also be fulfilled by fax, email or other means of communication that provide the possibility for a receipt confirmation to be issued.
When the claimant is not able to provide the defendant’s address, the communication is made by publication at the court’s headquarters, on the court’s electronic portal and at the defendant’s last known domicile.
The deemed date of service is the date when the receipt confirmation is signed by the receiver.
Outside the country, the communication of documents may also be made by mail with receipt confirmation and declared content. The service of judicial documents between Member States of the EU is regulated by Regulation no. 1393/2007. According to this regulation, as a rule, in civil and commercial matters, the judicial documents are transmitted directly and as soon as possible between the transmitting and receiving agencies of the Member States (according to the above-mentioned regulation, each Member State designates the public officers, authorities or other persons which will act as transmitting, or respectively receiving agencies). Afterwards, the receiving agency shall take all necessary steps to effect the service of the document as soon as possible, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State. Another means of transmitting the judicial documents according to the regulation is directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent.
The failure of the defendant to respond to a lawsuit does not hinder the development of the case. If the defendant does not submit a statement of defence during the written submissions phase, the judge will schedule the first hearing. The defendant may still appear at the first hearing, but the arguments that it can invoke might be limited because if the statement of defence is not submitted in time, the defendant may be unable to propose further evidence in its defence or invoke objections regarding the claim (except for objections of public order). Even if the defendant does not appear at the hearings, the proceedings will continue in its absence as long as the claimant is present or requested the court to settle the case even in its absence. Otherwise, the proceedings will be suspended.
In conclusion, the court vested with the claim will issue a judgment regardless of the defendant’s silence. However, this does not mean that the court will invariably rule in favour of the claimant. In virtue of its active role and of the principle of establishing the truth, the court will impartially analyse the case and issue a judgment based on the facts, the evidence submitted and their legal and/or contractual interpretation.
The concept of class actions is not regulated in Romania. However, several litigants may address the court with a collective claim if their rights stem from the same cause or if there is a close connection between their claims. These elements (same cause, connection) must be justified in front of the court. In addition, class actions may be filed by organisations representing the interests of its members; for example, a trade union can represent its members in a claim with respect to labour rights.
The legal assistance agreement concluded between the lawyer and the client at the outset of the dispute must include the fees the lawyer is entitled to. However, if the fee agreed is calculated on hourly rates, there are no legal and/or statutory requirements to provide the client with an estimate of the cost of litigation. In practice, usually the lawyers provide clients with such a cost estimate.
The parties have the possibility to apply for interim measures before the hearing of a claim, and in particular cases, even before trial, under strict conditions. As an interim remedy, the interested party may apply for freezing measures on goods, provisional measures or conservatory measures regarding evidence. Under Romanian law, there are no interim applications on case management issues.
Romanian civil procedure law does not provide for the possibility to apply for an early judgment of the issues in dispute, apart from the interim measures mentioned above (freezing injunction, provisional measures, conservatory measures regarding evidence) and for the possibility to issue partial decisions on the issues in dispute with respect to which the defendant admitted the claimant’s allegations. Sometimes, provisional measures may be ordered by court even before trial, under the condition that the claim is filed within a certain deadline from the moment the provisional measures were granted. For example, provisional measures related to intellectual property rights may be ordered even before a claim on the merits of the case is filed. However, such provisional measures will cease to exist if the claim on the merits is not filed within 30 days after the provisional measures were awarded.
The other party’s case cannot be struck out before trial, but it can be struck out before the substantive hearing of the claim if a plea/objection to this effect is admitted. The pleas which might lead to a striking out of the case, if admitted, may either be procedural pleas/objections (for example lack of payment of stamp fees, lack of representation powers of the representative filing the claim, exceeding the deadline to file a claim) or substantive pleas/objections the settlement of which does not require the verification of the merits of the case (for example, statute of limitations plea).
Dispositive motions are not applicable in the Romanian jurisdiction.
There are several scenarios in which a third party can join ongoing civil proceedings, either voluntarily or forced.
A third party bearing an interest can voluntarily join an ongoing procedure, either to support one of the parties’ positions (“accessory joinder claim”), or to settle its own right in connection with the ongoing procedure (“main joinder claim”). The accessory joinder claim may be filed at any moment during the civil proceedings, even during the appeals. The main joinder claim may only be filed in front of the first court, before the closure of the debates. As an exception, the main joinder claim may be filed during the appeal, with the other party’s consent.
Another situation in which a third party can join an ongoing procedure is a forced joinder, by means of which any party, including someone who filed a main joinder claim, can request participation in the proceedings of a third party which can claim the same rights as the claimant. A forced joinder may be filed by the defendant within the term of submission of the statement of defence or, if the statement of defence is not mandatory, at the first court hearing at the latest. The claimant and someone who filed a main joinder claim may file a forced joinder in front of the first court until the closure of debates.
A party in an ongoing procedure may also file a forced guarantee joinder against a third party that may be held liable through a separate claim, with regard to the main claim. The forced guarantee joinder may be filed within the same term as the forced joinder.
When a defendant holding an asset for another, or exercising a right in the name of another, is sued in connection with an in rem right, the defendant may indicate the person on whose behalf it is holding the asset or exercising the right by means of a joinder claim against a third party within the term of submission of the statement of defence or, if the statement of defence is not mandatory, at the first court hearing at the latest.
There are also several particular cases in which the court may order a joinder, even in the absence of the parties’ consent.
The possibility of the defendant applying for an order that the plaintiff pay a sum of money as security for the defendant's costs is not regulated under Romanian law.
There are no provisions governing the manner in which the court will order the parties to cover the costs of litigation in such applications/motions. Given the timeframe of such applications, namely before the hearing of the claim or even before trial, the court will not order costs for such applications when deciding on the interim application, but will take into account such costs when ordering all the costs accrued at the end of the trial.
Apart from the urgency of the procedure which is common to all the interim measures, each of them – namely freezing measures on goods, provisional measures or conservatory measures regarding evidence – is governed by rules providing for the special conditions which need to be met in order for such a remedy to be admitted, the urgency of the procedure and the manner in which the measure will be fulfilled.
For example, provisional orders may be ordered by the court in urgent cases when at first hand the plaintiff seems to be entitled to the right claimed in the substantive hearing, in order to preserve a right that might be damaged by delay, in order to prevent an imminent damage which might not be otherwise recovered or in order to set aside obstacles that might be encountered in enforcement proceedings.
Under the general rules of civil procedure, following the registration of the action or claim, a preliminary written procedure takes place solely between the court and the claimant during which the court makes sure that the claim complies with all the mandatory conditions regarding its contents and that the claimant has filed all the necessary documents that need to be attached to the claim. Only after the moment when the claim fulfils all formal conditions does the court proceed to communicate the claim to the defendant, accompanied by a note obliging the defendant to submit a statement of defence within (a general term of) 25 days from the communication of the claim. If the statement of defence is not submitted in time, the defendant may be unable to propose further evidence in its defence or invoke objections regarding the claim (except for objections of public order). The submitted statement of defence will thereafter immediately be communicated to the claimant, accompanied by a note obliging them to submit an answer to the statement of defence within ten days from the communication of the statement of defence. Within three days of the submission of the answer to the statement of defence, the judge establishes the first court hearing, which will be no later than 60 days from this date.
In urgent matters and applications for interim measures, the preliminary written procedure between the court and the claimant aimed at ensuring the claim fulfils all formal conditions may no longer take place. The terms for filing the written submissions may be reduced in urgent matters and the terms for setting the hearings may also be reduced by the judge, according to the circumstances of each matter. Sometimes, for example in an application for provisional orders, filing a statement of defence is not mandatory. In other cases, the judge may issue a ruling on a freezing injunction or on a provisional measures application without communicating the claim to the defendant and without hearing the parties, based only on the application and the evidence submitted by the plaintiff.
Generally, the civil procedure rules provide for an urgent settlement of the urgent matters.
In the Romanian jurisdiction, discovery covers only production of documents, not also taking of witness testimony.
The Romanian civil procedure rules provide for a specific process which enables the court to order the production of documents from the parties if certain conditions are met. The court administrates the discovery of documents. Thus, when a party claims that the opposing party holds a document relating to the dispute, the court may order its discovery.
There are no mechanisms by way of which the scope and/or costs of the discovery process can be curbed.
If one of the parties indicates that a document useful for the settlement of the dispute is held by a third party, the court may summon the third party, ordering it to disclose that document. Failure to comply with the court’s order may lead to an order for the payment of a fine. However, public authorities and public institutions may decline the disclosure of a document when it relates to national safety, public safety or diplomatic relations.
When a party claims that the opposing party holds a document relating to the dispute, the court may order its discovery. The request for discovery cannot be rejected if the document is a joint document of the parties, if the opposing party itself referred to said document in the proceedings or if, according to the law, it is obliged to submit it.
As a rule, if the court orders disclosure of a document, the parties must obey. However, the court will not order disclosure of a document that: contains strictly personal information regarding a person’s dignity or private life; breaches a legal confidentiality obligation; and/or leads to a criminal investigation of the party, its spouse or a third degree relative. The court is the only one to check whether one of the cases mentioned above is applicable, after studying the respective document. Refusal to submit ordered documents may be interpreted in some cases as an acknowledgement of the contents of said documents.
In Romanian civil trials, as a rule, all evidence is managed by and through the court. It is the court, at the parties’ request, that allows for different types of evidence to be submitted. All exchanges of written evidence between the parties will be made only after the commencement of the trial.
A witness statement is given orally before the judge. Each of the parties has the right to address questions to the witness. The answers to these questions and the statement are written down by the court clerk and signed by the witness. The document thus drafted is attached at the file as a witness statement.
On the other hand, experts give primarily written evidence, in the form of an expert report that is submitted to the file. However, if the judge requires additional information, the expert may be called in front of the court for an oral statement of clarification.
The rule is that all evidence is presented directly in front of the judge and not by intermediary means. As an exception, after being admitted by the court, the administering of evidence might be conducted between lawyers or legal counsel if both parties agree to do so. The schedule for administering the evidence between lawyers is approved by court and is binding for the parties and their lawyers. The possibility to administer the evidence through lawyers is available in all civil disputes apart from those concerning marital status, the capacity of persons, family relations and any rights relating to which the law does not allow a transaction between the parties. However, in practice, this procedure is hardly ever used.
Attorney-client communications and information received by an attorney fall under the attorney’s obligation of confidentiality. The extent of the obligation may vary depending on the agreement of the parties, but a general obligation of confidentiality is applicable to all attorneys, regardless of whether they are external or in-house counsel.
Apart from the rules mentioned in 5.3 Discovery in Your Jurisdiction, there are no other rules allowing a party not to disclose a document.
There are multiple injunctive reliefs a party can obtain.
On the one hand, a freezing injunction may be placed in relation to a debtor’s assets in particular conditions, upon the creditor’s request, when there is a risk that the debtor may alienate his or her assets during the trial. This measure freezes the assets of the debtor and prevents him or her from selling them, taking them abroad, etc. The levy may be lifted if the debtor provides a sufficient guarantee that the debt will be paid.
On the other hand, certain provisional orders may also be ordered by the court in urgent cases related to family relations, neighbouring and property relations, commercial relations, when at first hand the plaintiff seems to be entitled to the right claimed in the substantive hearing, in order to preserve a right that might be damaged by delay, in order to prevent an imminent damage which might not be otherwise recovered or in order to set aside obstacles that might be encountered in enforcement proceedings.
Injunctions to prevent parallel proceedings in another jurisdiction are not recognised under Romanian law.
Injunctive reliefs are considered urgent matters by the Romanian civil procedure rules, these rules providing a general rule for an urgent settlement of such cases.
Therefore, when such an application is filed, the preliminary written procedure between the court and the claimant aimed at ensuring the claim fulfils all formal conditions theoretically no longer takes place (there is case law where judges still follow such procedure, but under shortened terms). Where the ruling is issued after hearing both parties, the defendant is summoned according to the rules of summoning in urgent matters, namely the service no longer needs to observe the rule that a summons must be served at least five days before the hearing, the judge having the option to reduce the term for setting the hearing and servicing the summons depending on the circumstances of the case. Another provision meant to ensure the urgent settlement of such matters states that in such cases, the court will not admit evidence whose administering takes a long time.
For example, the civil procedure rules provide that in extremely urgent matters, a provisional order may be obtained in the same day, the court issuing a ruling based on the request for a provisional order and the evidence submitted, without hearing any of the parties.
In practice, obtaining an injunctive relief may take between a few days and a few months.
In certain cases, the civil procedure rules provide that a freezing injunction or an order for provisional measures (depending on the circumstances of the case) may be granted without hearing the parties, the court ruling being based only on the application and evidence submitted by the plaintiff.
In most of the cases when an injunctive relief is requested, the plaintiff is obliged (by the applicable legal provisions or following the judge’s decision to this end) to post a bail prior to the application being admitted. The bail counts as a security aimed at covering potential damages incurred by the defendant as a result of the injunctive relief, in case the defendant discharges the plaintiff’s claims following the substantive hearings. When the defendant discharges the plaintiff’s claims following the substantive hearings, the injunctive relief ceases to apply and the punitive damages that might be obtained by the defendant are not limited to the amount of the bail.
The rules apply regardless of whether the parties were heard before the relief was granted or not.
As a rule, injunctive relief is granted only in relation to the assets of the respondent located in Romania, as Romanian courts are not competent to settle claims relating to assets which are located in foreign countries.
Injunctive relief cannot be obtained against third parties, apart from a freezing injunction which might be placed on the defendant’s assets which are held by a third party.
Disobeying a court decision or order, aside from the criminal consequences which might materialise in being condemned for the criminal offence of contempt of court, gives the creditor the right to request the application of enforcement procedures.
An injunctive relief is enforced with the assistance of an enforcement officer (bailiff) under the general rules of enforcement, following the request of the creditor, if the debtor does not willingly obey the dispositions of the court.
In addition, the plaintiff may also claim from the respondent any damages incurred due to the latter's failure to comply with the terms of an injunction.
The trial is conducted by the judge and its development is governed by several principles, among which are the equality of the parties, the adversarial proceedings, the parties’ right to a fair trial, and the legality of the proceedings.
The written submission phase is followed by the oral phase, composed of judicial inquiry and debates. During the judicial inquiry, the court settles all preliminary matters, such as competence, payment of the stamp fee, admissibility of the claim, etc. Subsequently, the parties submit to the court’s attention the proposed evidence, which is then administered according to the court’s ruling.
Witness statements are given orally before the judge. During the hearing established by the court, witnesses testify under oath. Each of the parties has the right to address questions to the witness. A witness’s oral statement is recorded by the court clerk and signed by the witness in front of the court. Written statements are not admissible as such but will be treated as written documents.
Experts give primarily written evidence, in the form of an expert report that is submitted to the file. However, if the judge requires additional information, the expert may be called in front of the court for an oral statement of clarification.
The judicial inquiry is followed by the debates, during which each party states its case, and also considers the evidence that has previously been administered. At the end of the oral debates, the court may instruct the parties to submit written briefs or the parties may do so in the absence of the court’s instruction. This phase is followed by the issuance of the ruling.
In the case of shorter hearings, the defendant is summoned according to the rules of summoning in urgent matters, namely the service no longer needs to observe the rule that a summons must be served at least five days before the hearing, the judge having the option to reduce the term for setting the hearing and servicing the summons depending on the circumstances of the case. Another provision regarding the manner in which short hearings are conducted is that in certain cases, for example in the case of an application for provisional measures, the court will not admit evidence whose administering takes a long time. In certain cases, for example in the case of a provisional order application, the rules governing the judicial inquiry are no longer applicable.
In terms of case management, at the first hearing when parties are legally summoned, the judge will ask the parties to estimate the duration of the judicial inquiry phase of the trial and, after hearing them, the judge will estimate this duration, depending on the circumstances of the case, so that the case is settled in a reasonable and predictable term. This estimation is not binding, the judge being able to reconsider the duration, based on thorough grounds and after hearing the parties.
Another measure related to the case management is that after admitting the necessity to administer an expertise, the court might set a hearing in order to hear the expert regarding the estimated duration for producing the expert report.
The Romanian civil procedure rules do not provide for the participation of a jury.
The admissible pieces of evidence provided by Romanian law are the following: written documents, witness statements, cross-examination of the parties, expert reports and on-location inspection by the court.
Each party in a trial is responsible for submitting evidence in favour of its claims or as a defence to the opposing party’s claims. There are certain conditions related to the timing of when evidence might be proposed. As a rule, the plaintiff shall present their proposal regarding the evidence in its claim, while the defendant indicates it in its statement of defence, under the sanction that they may be unable to propose further evidence, As an exception, additional pieces of evidence may be submitted during the trial if there is the need for submission resulting from the debates, or the interested party was unable to propose it within the legal term due to justified reasons.
In order for a piece of evidence to be admissible, the following elements must be proven by the party claiming the admission of evidence regardless of its type: the evidence must be legal (in accordance with material and procedural law); plausible (realistic, in accordance with the laws of nature); pertinent (in connection with the object of the trial); and conclusive (regarding elements that may lead to a solution of the trial) for the litigation.
As far as the condition that the evidence should be legal is concerned, it is not admissible to use witness statements to prove the existence or content of a judicial act of a higher value than RON250, except for judicial acts made by a professional in the exercise of their professional activity (when the evidence is made against the professional), provided that the law does not require written evidence.
Expert testimony is a common type of evidence in civil trials, administered following either a party’s request or the court’s order. An expert report is usually presented in a written form but it is also possible for the court to hear the appointed expert during the court hearing and record his or her statement.
Experts are appointed by the court. An appointed expert must be an impartial professional. The court may grant to each party the assistance of a counsel expert who will owe his or her duties to the party and who will guard the party’s interest.
In complex cases, the court may appoint an expert committee consisting of three experts.
As a rule, court hearings are held in public sessions. In particular cases, the law provides that some types of claims are to be settled only in the presence of the parties. In addition, following a grounded request of a party, the court itself may instruct that hearings are only held in the presence of the parties.
Under the provisions of the New Civil Procedure Code, the trial has been divided into two phases. The administration of evidence and debate of any prior issues necessary for the settlement of the case are now to be held behind closed doors and only in the presence of the parties, and only the closing arguments will be held in public sessions. However, for organisational reasons and due to a lack of space, at present the applicability of such provisions has been delayed until 31 December 2018.
Court documents, including the notes taken by the court clerk during the hearing, are only available to the parties in the trial and their representatives. To study a file, applicants must present an identification document proving their capacity. At their request and their expense, the parties may also obtain an electronic copy of the record of the hearing. Under specific conditions provided by the law, members of the press or third parties proving they bear an interest in relation to the file may study court documents.
The judge has an inquisitorial role, being actively involved in investigating the case and able to address questions to the parties, decide upon the necessity of particular additional evidence, invoke procedural incidents, etc. The judge is also responsible for leading the hearings.
Usually, the court will settle during the hearing issues such as jurisdiction, admission of evidence, procedural incidents. However, sometimes, if the discussed issue is the subject of a strong debate between the parties, the judge may postpone issuing a decision until in chambers.
In practice, as a rule, the judges issue the decision in their chambers and not in public session. The judge might postpone the issuance of the decision several times.
Under the general rules of civil procedure, civil proceedings start with an extended exchange of written submissions prior to the setting of the first court hearing, a novelty introduced by the New Civil Procedure Code. After the registration of the claim, the court ensures that all the procedural requirements of the claim are met. If this is not the case, the claimant is given a ten-day term to comply with the law.
Only after the moment when the claim fulfils all formal conditions does the court proceed to communicate the claim to the defendant, which is granted a term of 25 days to submit its statement of defence. The statement of defence is then communicated to the claimant, which, within ten days after its receipt, may submit an answer.
The written submission phase is followed by the oral phase, composed of judicial inquiry and debates. Thus, within three days of the submission of the answer to the statement of defence, the judge establishes the first court hearing, which will be no later than 60 days from this date.
During the judicial inquiry, the court settles all preliminary matters, such as jurisdiction, payment of the stamp fee, admissibility of the claim, etc. Subsequently, the parties submit to the court’s attention the proposed evidence, which is then administered according to the court’s ruling.
The judicial inquiry is followed by the debates, during which each party states its case, and also considers the evidence that has previously been administered. At the end of the oral debates, the court may instruct the parties to submit written briefs or the parties may do so in the absence of the court’s instruction.
The next phase of civil proceedings is the issuance of the judgment, which may be succeeded by the legal means of appeal or by the enforcement procedure.
The duration of the trial highly depends on the complexity of the case, the means of evidence to be administered, and the preliminary aspects invoked by the parties. As such, a trial in the first tier of jurisdiction may last between a couple of months and several years.
When settling a lawsuit, if the parties wish the court to approve their settlement, they need to request the court to issue a ruling acknowledging such settlement. The settlement must be concluded in written form and will form the solution part of the ruling. The parties may settle the case at any stage of the proceedings. The same rules apply when the settlement is reached following mediation.
The settlement of a lawsuit may remain confidential if the parties agree not to present to the judge the settlement agreement and request the judge to close the case by acknowledging a waiver of the claim or of the right claimed instead.
The means of enforcement of a settlement differ depending on whether the settlement represents an enforcement title or not. If the settlement is acknowledged in an authenticated agreement or in a court ruling, the party in default may be obliged to fulfil its obligations deriving from the settlement with the assistance of an enforcement officer (bailiff).
If the settlement takes the form of a written agreement, not authenticated, the damaged party needs to file a claim against the other party to the settlement agreement in order to have the court ascertain the breach of the obligations within the settlement agreement and compel the latter to cover the damages incurred as a result of the latter's failure to fulfil its obligations deriving from the settlement agreement; after obtaining such court decision it may enforce it through an enforcement officer.
On the one hand, a party to the settlement agreement may request the annulment of the agreement for breaching any of the conditions for the legal conclusion of an agreement (consent, capacity, object, cause, form). As well, a party might file a claim to set aside the settlement as a means of holding liable the party that breached its obligations deriving from the settlement agreement.
On the other hand, a party may challenge the ruling acknowledging the settlement agreement only for procedural grounds by means of a second appeal which will be settled by the superior court.
According to the parties’ claims, the court may grant compensatory or punitive damages, legal or contractual interest, as well as judicial expenses.
Punitive damages are available in the case of observance of the debtor’s fault. There are no provisions limiting the maximum amount of damages which may be awarded to a party.
Interest is payable upon request, and its amount is either previously established by the parties or, in the absence of an agreement, the legal interest rate.
A successful party may collect interest starting from the moment the other party was summoned to comply with its obligations, in case such a summons is requested by law or starting from the moment the other party failed to comply with its (generally contractual) obligations, in case summoning the other party is not requested by law (subject to the statute of limitations). A successful party may collect interest until the obligation is fulfilled by the other party, the court being able to order the amount of interest accrued till the complaint was filed, the further amounts which will accrue till the obligations are performed being calculated by the enforcement officer (bailiff).
For both pre- and post-judgment interest, either its amount is previously established by the parties by means of an agreement or, in the absence of an agreement, the legal interest rate applies.
The statute of limitations which applies for the accrued interest is three years. Account needs to be taken of the fact that, as outlined above, the statute of limitations is subject to suspension and interruption.
In case the claimed rights take the form of an obligation which needs to be performed successively (for example, monthly rent), a statute of limitations of three years applies to each of the successive elements of the obligation (in our example, for each rent) and consequently, to the interest accrued following the failure to comply with each of the named elements.
Any final or otherwise enforceable court decision or order can be enforced with the assistance of an enforcement officer and under the court’s supervision, following the request of the creditor, if the debtor does not willingly obey the dispositions of the court.
Disobeying a court decision or order, aside from the criminal consequences, gives the creditor the right to request the application of enforcement procedures that may consist of the capitalisation of movables and immovables or the garnishment of bank accounts.
A judgment from a foreign country which is not willingly complied with by the losing party might be enforced on Romanian territory, following a successful request of the interested party that the enforcement is approved by the tribunal in whose jurisdiction the enforcement is going to take place. The approval of the enforcement is admitted under the same conditions imposed for the recognition of a judgment from a foreign country (detailed below) and the additional condition that the judgment aimed to be enforced is enforceable according to the law of the issuing country.
A foreign judgment either is duly recognised or has to undergo a recognition procedure, according to the nature of the litigation. Thus, a foreign judgment is duly recognised when it relates to the personal status of the citizens of the state in which it was issued, if it has previously been recognised in the citizenship state of each party or if it was issued according to the applicable law, according to Romanian international private law, and is not contrary to Romanian international private law public order, and the right to defence was respected.
In cases other than those stated above, foreign judgments are recognised following a judicial procedure, provided that several conditions are met: the judgment is final according to the law of the issuing state; the issuing court had competence to settle the trial; and there are reciprocity agreements regarding the effects of foreign judgments between Romania and the issuing state.
As a rule, a first court judgment is subject to appeal. The request for appeal has to be filed within (a general term of) 30 days after the communication of the judgment to the parties.
The judgment issued by the court of first appeal is subject to a second appeal that can only be filed for particular reasons. In certain cases strictly provided by law, the ruling issued by the appeal court cannot be challenged by means of a second appeal.
The law also provides for exceptional means of appeal, in particular cases.
As a rule, a first court judgment is subject to appeal. Any exceptions to this rule are strictly provided by law. An appeal will be granted provided that: it is admissible, it meets all the requirements of any claim before the court (it is signed by the party or its legal representative, the party filing it bears an interest to this effect, the corresponding stamp fees have been paid) and it is grounded. In addition, for a second appeal to be granted it is necessary that the grounds invoked when filing the second appeal belong to the particular grounds stipulated by law for which a second appeal may be filed.
The appeal is settled by two judges, whereas the second appeal is settled by three judges. As a rule, appeals follow the hierarchy of the courts; for example, a claim settled in the first instance by the first court will be subject to a first appeal at the Tribunal and, if the case requires (depending on its nature), a second appeal at the Court of Appeal. Similarly, a claim settled in the first instance by the Tribunal will be subject to a first appeal at the Court of Appeal and (depending on its nature) to a second appeal at the High Court of Justice. These procedural stages cannot be omitted during the course of the appeals process.
As a rule, the provisions regarding the procedure of adjudicating in the first tier of jurisdiction are applicable to the appeals and second appeals as well, unless derogatory rules apply.
On a general note, in case an appeal is admitted, the court will re-hear only the merits of the case which were challenged by means of the appeal and only the merits which were invoked in the first tier of jurisdiction, new grounds not being admitted.
The procedure for judging an appeal is governed by the rules regulating the settlement of the first tiers of jurisdiction, to which a few derogatory rules apply.
As a general rule, the request for appeal has to be filed within 30 days after the communication of the first court judgment to the parties.
The appeal is filed to the first-tier court, which will transmit the appeal and the entire file to the superior court. The court proceeds to communicate the appeal to the respondent, which is granted a term of 15 days to submit its statement of defence. The statement of defence is then communicated to the appellant, which, within ten days after its receipt, may submit an answer.
The written submission phase is followed by the oral phase, composed of judicial inquiry and debates. Thus, the judge establishes the first court hearing, which will be no later than 60 days from this date.
During the judicial inquiry, the court settles all preliminary matters, such as competence, payment of the stamp fee, admissibility of the claim, etc. Subsequently, the parties discuss the evidence proposed by means of the appeal/statement of defence, which is then administered according to the court’s ruling.
The judicial inquiry is followed by the debates, during which each party states its case, and also considers the evidence that has previously been administered. At the end of the oral debates, the court may instruct the parties to submit written briefs or the parties may do so in the absence of the court’s instruction.
The next phase of civil proceedings is the issuance of the judgment, which may be succeeded by the legal means of a second appeal (if admissible) which has to be filed within 30 days after the communication of the ruling or by the enforcement procedure.
The duration of the appeal highly depends on the complexity of the case, the means of evidence to be administered, and the preliminary aspects invoked by the parties. As such, settlement of an appeal may last from one month to several years, calculated from the date of the first hearing.
In the Romanian jurisdiction, appeal is the ordinary means of challenging a judgment. Filing an appeal triggers a re-hearing of the entire case, unless the parties limit by means of the appeal filed the part of the judgment to be re-heard. New means of evidence may be proposed by parties by means of the appeal or the statement of defence, and the court itself may order the re-administering or the supplementation of the evidence administered in the first court.
As a general rule, the parties may not bring new claims by means of an appeal or change the object or cause of the claim. However, in the appeal stage, the parties may explicitly detail claims which were only implicitly included in the claims/defences raised in the first court. As an exception, parties may also request for the first time in the appeal stage the interest and rates accrued after the issuance of the ruling of the first court, claims which became outstanding after the issuance of the first court ruling or damages incurred after the ruling of the first court was issued. As well, parties may invoke legal set-off for the first time in the appeal stage.
The second appeal is considered an extraordinary means of challenging a judgment. The grounds of the second appeal need to fall within certain categories of grounds expressly stipulated by the law, which generally concern the legal aspects of the ruling and not the factual side. New means of evidence may not be proposed by parties before the second appeal court, except for new documents, which need to be submitted either attached to the second appeal request or to the statement of defence.
Once the general conditions for filing an appeal are met and the appeal is granted, the court cannot impose any conditions on or pursuant to such granting.
After hearing an appeal, the court may either:
As far the powers of a court adjudicating a higher appeal are concerned, as a general rule, the court might annul the higher appeal on procedural grounds, reject it as ungrounded or admit it. However, if the higher appeal is admitted, a distinction needs to be made, depending on the court adjudicating the higher appeal.
Thus, if the higher appeal is adjudicated by the Highest Court of Cassation and Justice, the court will send the case either to the appeal court or to the first court if its ruling is also unlawful. If the higher appeal is adjudicated by a Tribunal or a Court of Appeal, the case will be re-heard on the merits either by the same court or by the appeal court if the latter unlawfully issued a ruling without judging the merits of the case or adjudicated the case in the absence of the party unlawfully summoned.
In the initial phase of the litigation, each party is responsible for its own costs. The plaintiff is required to pay a stamp fee when filing a claim. The stamp fee is determined by law, according to the object and value of the litigation, and the court ensures that the claimant pays it. As far as the expert’s fee is concerned, when admitting an expert report, the court will also establish which party is going to pay the corresponding fee. Usually, the party requesting the expert report is going to be obliged to pay the corresponding fee, but the fee might also be shared between the parties if both parties submitted certain objectives which the expert report was to analyse. The expert’s fee is determined according to the complexity of the case and the amount of work to be completed by the expert.
Once an award has been issued, the losing party may be ordered, at the prevailing party’s request, to reimburse all, or part, of the prevailing party’s costs, including attorneys’ fees. The prevailing party may claim reimbursement of its costs either during the course of the litigation itself or by means of a separate request, following the issue of the award. The court has the power to order the losing party to cover several types of costs incurred by the winning party, including the stamp fee, the expert’s fee and lawyers’ fees. The court has the ability to limit the amount of the prevailing party’s attorneys’ fees by taking into consideration the difficulty of the litigation, the actual amount of work required from the attorneys and other similar elements. If a claim is only partly admitted, the court may order the costs to be shared, namely each party will cover its own costs.
The amount of the costs to be paid by the losing party might be challenged by both parties by means of an appeal, the losing party requesting the decrease of such costs, or the winning party respectively challenging a potential decrease of the costs ordered by the court.
When awarding costs, the court orders the losing party to cover all the costs with the stamp fee and the expert’s fee incurred by the other party, if the latter’s request was fully admitted.
As far as the lawyers’ fees are concerned, the court may limit the amount of such costs taking into account elements such as the difficulty of the litigation, the amount disputed in the file and the actual amount of work performed by the lawyers, depending on the particular circumstances of the case.
Under Romanian law, interest on costs is not awarded.
Alternative dispute resolution (ADR), in the form of arbitration and mediation, is not commonly used in Romania but has rather gained popularity in Romania in recent years.
The most commonly used ADR process is conciliation, which is usually organised by the parties themselves or by the assisting attorneys. In the past couple of years, mediation has been intensely lobbied but still has not gained usage in a significant share of disputes. Starting from 2012, the law regarding mediation provided for mandatory participation in a meeting regarding the advantages of mediation for certain litigations. Since the sanction for filing a claim without complying with this obligation was the dismissal of the claim as non-admissible, most claimants complied. This obligation has afterwards been invalidated by the Constitutional Court. In its Decision no. 266/2014, the Constitutional Court stated that the obligation to participate in such a meeting is an infringement of access to justice and is therefore non-compliant with the Romanian Constitution.
Adjudication is also used, generally in disputes arising from International Federation of Consulting Engineers contracts.
Arbitration is more frequently used when one of the parties is of foreign nationality and/or when one or both parties are acting in a professional capacity.
As a rule, the Romanian legal system does not really promote ADR. However, there is a general obligation of a judge to urge parties to try to amicably settle the dispute.
As stated above, since August 2014, following Constitutional Court Decision no. 266/2014, mediation is no longer compulsory before submitting a claim to court.
There are certain cases in which the law provides for a preliminary procedure. For example, in administrative law, the provisions require the fulfilment of a preliminary procedure taking the form of a preliminary request addressed to the institution refusing the claimed right or the institution superior to the one refusing the right or the form of conciliation when the claims derive from an administrative contract. In such a case, the preliminary procedure is compulsory. In such a case, a claim filed without observing the preliminary procedure will be rejected as premature.
If either the law or the contract provides for another type of preliminary procedure, such as adjudication, the courts or tribunals may compel the parties to undergo such procedure.
In general, there is room for improvement when institutions offering and promoting ADR are concerned.
The main institution for ADR in Romania is the Court for International Commercial Arbitration (CICA) functioning within the Chamber of Commerce and Industry of Romania. In the past years, arbitration has experienced a steady growth. The majority of the cases involve construction disputes, but various other contractual disputes are also referred to international arbitration, including energy-related disputes. We are expecting an even steadier growth following the new set of rules adopted by the CICA starting on 1 January which align to the rules of the ICC and other similar institutions like the LCIA.
The main body of law applicable governing arbitration is included in the Code of Civil Procedure, which came into force on 15 February 2013. Book IV of the Code of Civil Procedure (“On Arbitration”) regulates national arbitration and also represents the general set of provisions applicable to international arbitration whenever the parties have not agreed on certain aspects in the arbitration agreement and have not vested the arbitral tribunal with settling those aspects either, while Title IV of Book VII sets out specific legal provisions regarding international arbitration and the effects of foreign arbitral awards.
The arbitration law includes mostly non-mandatory provisions, as a reflection of the principle provided for in the Code of Civil Procedure that parties are free to organise arbitral proceedings as they deem fit. However, parties’ freedom is subject to observing public policy, a couple of mandatory provisions and ethics. For instance, in ad hoc arbitration organised by the parties themselves, they are free to agree rules regarding the constitution of the arbitral tribunal, removal of arbitrators, the timing and seat of the arbitration, the procedural rules to be applied by the arbitral tribunal (including potential preliminary proceedings), the allocation of costs and any other rules that may govern the arbitration, subject to public policy, mandatory provisions of law and ethics. There are a few mandatory rules, for instance certain validity requirements of the arbitration agreement, regarding the written form of the arbitration agreement or the authenticated form of the arbitration agreement in arbitrations regarding the transfer of the ownership right over an immovable asset. The law also imposes certain fundamental principles related to a fair trial from which no derogation is permitted (e.g. the parties shall be ensured equal treatment, the right to defence and a reasonable opportunity to present their case).
Romania ratified the New York Convention in 1961 by means of Decree no. 186/1961 which came into force on 24 July 1961.
Romania reserved the right to apply the convention only to:
As the new Civil Code which came into force in October 2011 repealed the former Commercial Code of Romania of 1887, in the absence of a specific body of law regulating commercial relationships, the concept should be construed broadly in the context of international arbitration, as encompassing relationships that are commercial in nature (whether contractual or not).
As a matter of principle, all disputes are arbitrable, unless there is a legal provision which states otherwise.
As far as national arbitration is concerned, the following matters are exempt from arbitration, according to the Civil Procedure Code: civil status litigation, litigation with respect to legal capacity of persons, inheritance litigation, matters arising out of or in connection with family relations, as well as litigation regarding rights that the parties cannot dispose of (e.g. in labour and employment law matters where the law expressly provides that a party cannot waive the legal rights established in their favour, or criminal matters – except for civil aspects arising in connection thereto).
Regarding international arbitration, a dispute can be referred to arbitration provided that:
The parties may appeal an arbitral award by means of a set-aside claim, on one of the following grounds:
The request to set aside the arbitral award may be filed within one month of service of the award on the parties, unless the request is grounded on the subsequent issuance of the Constitutional Court, where the time limit is three months after publication of that court’s decision. Certain reasons for setting aside an arbitral award may be deemed waived if they are not raised before the arbitral tribunal at the start of the process (particularly those relating to the jurisdiction and constitution of the arbitral tribunal). A request to set aside is subject to a fixed court fee under the law.
The jurisdiction to settle the set-aside claim belongs to the court of appeal of the county where the arbitration took place. The ruling issued by the court of appeal is subject to a higher appeal.
Domestic arbitral awards are treated and enforced in the same way as court decisions whereas foreign arbitral awards are subject to recognition and enforcement proceedings before the Romanian courts. The award can be enforced with the assistance of an enforcement officer and under the court’s supervision, following the request of the creditor, if the debtor does not willingly obey the dispositions of the court.
As a matter of principle, any foreign arbitral award is recognised and may be enforced in Romania as long as the dispute is arbitrable according to Romanian law and the award does not comprise measures contrary to the public order of Romanian private international law.
In order to be granted the recognition and enforcement of an arbitral award, the parties must comply with certain formal requirements – they must file a request to this effect before a competent court and attach legalised or apostille certified copies of the translated award and arbitration agreement. The court vested with hearing a request for the recognition and enforcement of a foreign arbitral award is prohibited from reviewing the merits of the dispute, its examination being limited to the grounds for refusal of recognition and enforcement, as set out in the Code of Civil Procedure.
The grounds for refusal of recognition and enforcement of the foreign award provided in the code follow those established in the New York Convention, such as the parties did not have the capacity to conclude the arbitration agreement, the arbitration agreement was not valid, the award regards a dispute which was not included in the arbitration agreement or which exceeds the limits set by the arbitration agreement.