Litigation 2019 Second Edition

Last Updated December 05, 2019

Moldova

Law and Practice

Authors



Efrim Roșca & Associates has a team composed of nine lawyers, of which two are partners, with its headquarters located in Chisinau, Moldova. The team has professional legal experience of between five and 20 years in litigation matters, especially commercial disputes. During the last two years, it has successfully represented clients in commercial and litigation matters worth more than USD100 million (approximately 1% of Moldova’s GDP). ERA has successfully represented Brio Sonores, a famous pop group in both the Republic of Moldova and abroad, regarding a dispute related to their trademark registration. The firm's work has forged new paths and had a significant impact on judicial practice in two different landmark cases: the ProEuroConsult case regarding the illegality of limitation of liability in casualty and collision insurance agreements and the METRO Cash and Carry case regarding copyright remuneration.

The Republic of Moldova’s legal system is based on civil law. It follows a largely adversarial model, but some elements of the inquisitorial model are applied. Legal process is conducted primarily through written submissions, but oral argument is also applied at a specific stage of the process.

In January 2019 the Code of Civil Procedure was substantially amended. The legislature's intention was to reduce the length of court proceedings by simplifying the procedures for some types of civil actions, including the mandatory introduction of mediation for family, labour, consumer, inheritance disputes, etc. One of the main changes is the possibility of filing claims through the Integrated File Management Programme. This programme is, however, still to be developed.

Another major amendment was made to the Moldovan Civil Code, effective as of 1 March 2019. The new provisions were meant to modernise the national legal infrastructure and harmonise it with those used internationally, with particular reference to the status of persons, property, obligations, inheritance and private international law.

The structure of the Moldovan court system is tripartite, consisting of 15 Courts of First Instance, four Courts of Appeal and the Supreme Court of Justice. Each Court of First Instance has jurisdiction over the area in which that court sits (judicial districts). A Court of Appeal has jurisdiction in a judicial district that includes several Courts of First Instance, as specified by law. The Supreme Court of Justice is the supreme court, and ensures the correct, unitary and nation-wide application of the laws by all inferior courts.

As a general rule, courts are not organised by subject matter jurisdiction. Nevertheless, the Law on Reorganisation of the Courts provides for the specialisation of judges by subject matter. Currently, there are specialised sections within some courts for matters of insolvency, administrative matters and criminal cases.

All claims settled by a First Instance Court are subject to an appeal at the Courts of Appeal. Awards of the Courts of Appeal, given in its capacity as a first instance court, are subject to appeal and those given in its capacity as an appellate court are subject to second appeal, in both cases at the Supreme Court of Justice.

The claims in Courts of First Instance are settled by one judge, in Courts of Appeal – by a panel of three judges and in the Supreme Court of Justice – by a panel of five judges.

As a rule, court filings and proceedings are open to the public. The president of the court shall ensure the publication of all the procedural documents on the web page of the court within three days from the issuance of those procedural documents. However, court fillings and proceedings will be restricted from public disclosure if this is necessary to protect information that constitutes a state or commercial secret, or any other information whose disclosure is prohibited by law.

The courts will order a trial to be held in a secret hearing if this is necessary to prevent the disclosure of information that relates to intimate aspects of life or may harm the honour, dignity or professional reputation of someone. Disclosure will also be prevented in circumstances that could harm the interests of the parties, public order or morality. The hearing may be declared secret for the entire process or only for certain or its procedural acts. The participants in the trial, and other persons who have access to the procedural documents, are held liable for their disclosure of the secret data. Nevertheless, if a process is declared confidential, that decision is pronounced publicly.

In the civil process, individuals can defend their interests personally, or through a lawyer or trainee lawyer admitted to the National Bar Association.

Natural persons can also be represented in court by their spouse, parents or other family members if they are licensed to do so in law, and based on a notarised power of attorney.

The lawsuits of a legal persons are sustained in court by their administrative bodies – which act within the limits of the powers conferred by law, by other normative acts or by their articles of incorporation – as well as by other authorised employees of the entity, or by lawyers or trainee lawyers admitted to the National Bar Association.

The power of representation in court grants (to the representative) the right to exercise (on behalf of the principal) all the procedural rights, except those which must be expressly mentioned –ie, the right to sign the application and to file it in court, the right to resort to arbitration or mediation, to renounce all or a part of the claims in an action, etc.

According to Moldovan law, foreign lawyers can exercise their duties in Moldova if they certify their status as a lawyer in their state of origin and they are registered in the special register kept by the Moldovan Bar Association. However, foreign attorneys cannot represent the interests of natural or legal persons in the courts and in relations with other public authorities, except in international commercial arbitration. The foreign lawyer can only assist the local lawyer in front of the court.

Third-party litigation funding is not regulated by Moldovan law. Although it is not expressly prohibited, given that third-party litigation funding is not provided as a legal tool, there are no mechanisms for its genuine implementation.

The plaintiff is indicated, in the receipt, as the payer of the state duty for litigation. However, a third party could fund this duty with no further implication within the proceedings.

There is also a possibility for a third party to purchase litigious rights, in such cases, the third party will become a party in the trial and the seller of the litigious right shall have no longer a procedural status.

There are no provisions in this regard. In the case of the purchase of litigious rights; the law expressly provides that judges, lawyers, notaries, prosecutors and bailiffs cannot acquire them under sanction of absolute nullity.

Given that there are no express prohibitions in this regard, third-party funding may be available to both the plaintiff and defendant.

As it is not provided by law, the minimum and maximum amount of third-party funding shall be subject only to the parties' agreement.

The types of costs considered under third-party funding shall be provided in the funding agreement and the funder and the beneficiary shall have the liberty of establishing such costs. The third-party funder may cover all the costs related to a legal trial –ie, state and court fees, legal assistance fees and any other incidental expenses.

The lawyer has the right to request and obtain, in addition to an hourly or fixed fee, a success fee. The success fee consists of a fixed or variable amount, payable if the lawyer reaches a certain result. In criminal cases, the success fee can only be claimed in relation to the civil aspect of the case.

The Bar Association has issued recommendations for attorneys when setting a success fee. As per these recommendations, a success fee of 17% of the value of the claim is a reasonable one. However, given that there are no legal provisions regarding the amount of the fee, the lawyer and his or her client have the liberty to agree a different success fee.

There are no legal provisions regarding time limits for obtaining third-party funding.

The procedural legislation establishes certain requirements for exercising the right to file a suit. One of these conditions is the observance of the procedures of a prior settlement through extrajudicial means if, for such litigation, the fulfilment of this procedure is provided by law or by a contract between the parties.

Although, in some areas the law does not provide for compulsory pre-litigation procedures, in practice it's very common. The observance of these preliminary procedure is a tool for the prevention of possible disputes and eliminates any doubt regarding the relevance of the initiated litigation. Also, in some cases it is evidence of a refusal to execute relevant obligations.

If the fulfilment of the pre-action conduct is provided by the law or by the contract between the parties as a mandatory procedure, then its non-observance has, as a consequence, the restitution of the claim. Currently, compliance with the pre-action conduct is required by a large number of normative Acts. Pre-settlement through extrajudicial means is provided, for example, for administrative litigation, labour litigation and other areas provided by law.

As of 1 March 2019, when the amendments to the Civil Code came into force, there are three time limits for bringing a civil lawsuit to court: the general term of three years and the special terms of six months and ten years. Actions regarding the defence of non-patrimonial personal rights are prescribed only in the cases expressly provided for by law.

The special statute of limitations of six months is provided for disputes regarding compensation for damages caused by violation of the right to a fair trial or of the right to execute a court award within a reasonable time.

For bringing a lawsuit regarding real rights, which are not declared by law as imprescriptible or are not subject to another statute of limitation, and the compensation of environmental damages, the limitation period is ten years.

The statute of limitations runs as of the date the right to action arises. The right to action arises on the date when the person found out or should have found out about the violation of the right. The law provides for a few exceptions, such as, if the right is affected by a suspensive term or a suspensive condition, the term of the statute of limitations begins to run as of the date that term or condition is fulfilled. The law also provides for certain situations when the statute of limitations is considered suspended or interrupted.

The expiry of the statute of limitations is raised before the court within the preparatory phase of a case. The court will examine the substance of a claim only after it has ruled against the expiry of the statute of limitations.

Any interested person has the right to file an action to the court, in order to defend his or her violated or challenged rights, their liberties and legitimate interests. No person shall be refused judicial defence because of the non-existence, imperfection, collision or obscurity of the legislation in question.

The capacity to fully exercise procedural rights and obligations in court is held by natural persons from the age of 18, by duly registered legal entities and, in cases provided by law, by entities that do not have legal personality but have their own governing bodies. The rights and interests of minors up to 14, and between the ages of 14 and 18, are defended in the court by their legal representatives – parents, adoptive parent or their guardians.

According to the general territorial jurisdiction, the plaintiff can bring an action in any of the courts that cover the territorial area of the defendant’s domicile. The action against a legal entity is filed in the court that covers the territorial area of the legal address of the respective legal entity. In some cases, the action may be filed at a different court, at the choice of the applicant. A lawsuit against several defendants with different domiciles is brought in front of the court from the domicile or place of residence of one of them, at the choice of the plaintiff. The counterclaim is initiated, regardless of the court competent to judge it, in the court that judges the initial action.

The writ for suit must comprise the identification data of the parties, the factual and legal grounds of the claim, references to the observance of pre-action conduct if mandated by law, information on the plaintiff’s representatives and the empowering document. To the writ shall be attached the evidence supporting the claim and the payment note of the state duty.

The plaintiff can amend the grounds and the subject of the writ for suit only up to the expiry of the preparation phase of the case. Amendment of the writ after this is considered as a new writ for suit and can be submitted to the court only as a separate action.

As a rule, the communication of the procedural documents is carried out by the court. The writ for suit and the procedural documents are communicated to the participants, against signature, by means of the authorised person, by post, by registered letter and by notice of receipt, through the bailiff’s office, at the electronic address indicated in the writ for suit or registered through the Integrated File Management Programme, or by other means which ensure the transmission of the text contained in the document and the confirmation of its receipt.

When the defendant’s residence is not known the court will summon him or her publicly by publishing, in the press, the summons for suit 15 days before the date of the hearing. In such cases, if the defendant does not appear in front of the court, the lawsuit shall be examined in his or her absence.

If the hearing is postponed, it is not necessary to summon, for the next hearing, the participants present at the first.

With the parties’ consent, the judge may entrust, to a participant, the summons or notification to be handed to the addressee. The person empowered by the judge is obliged to return proof of the addressee’s receipt.

The procedural rules provide for several situations where a party can be sued in the jurisdiction of the plaintiff’s domicile. These include labour disputes, divorce if the applicant takes care of a minor or the spouse is in jail, housing disputes and claims regarding compensation for damages caused by injury to bodily integrity.

The law provides that, in the event of the impossibility of the participants being present at the court hearing, they are obliged to communicate the reasons for their absence to the court.

If the legally summoned defendant does not appear in front of the court and does not communicate the reason for his or her absence or if such reasons are considered by the court as ungrounded, then the absence of that party does not hinder further examination of the case.

The examination of the case, in the absence of participants who were not informed about the date, place and time of the hearing, is a gross violation of the procedural rules and rights and constitutes ground for the annulment of the court award.

Moldovan legislation does not regulate the concept of class actions; however, it does provide for procedural co-participation. Procedural co-participation is mandatory if the examination of the case involves the settlement of the rights and obligations of several claimants and/or defendants or when the rights and obligations of the claimants or defendants arise from the same factual grounds or law.

Any interested person has the right to request to intervene in the lawsuit as co-claimant or co-defendant.

If the necessity of intervening in the lawsuit of a co-participant is ascertained during the court’s deliberation; the court will resume the examination of the case and will order the resummoning of those participants.

There is no requirement to provide the client with a cost estimate for litigation. However, lawyers can usually estimate the costs to be incurred by the client that may arise in a possible litigation, including the fees for legal assistance and incidental expenses. In this respect, lawyers usually provide information on the amount of the state duty to be levied upon the filing of the action, as well as the possible fee for the use of remedies.

Parties can apply for an interim remedy before a substantial hearing of a claim and request the appliance of freezing measures on assets in order to ensure the further execution of a judgment.

A party interested in preventing the disappearance of, or the impossibility of future use of, evidence supporting its claims can apply for an interim remedy for the conservation of such evidence. The safeguarding of evidence before trial is carried out by bailiffs and notaries.

Moldovan legislation does not provide for interim application on case management issues.

Moldovan law does not provide for the possibility of an early judgment of some, or all, of the issues in dispute. A party’s case being struck-out, before trial or substantive hearing of the claim, is also not contemplated in our jurisdiction.

Dispositive motions are not regulated by Moldovan procedural law.

Any interested person, other than the plaintiff or the defendant, can intervene in an ongoing lawsuit. The intervention in the process is a “main joinder claim” when the third party defends his or her own rights over the subject matter of the dispute or a right related to it. An “accessory joinder claim” is filed when the third party comes to support one of the parties’ positions and when the court award could influence his or her rights or obligations towards that party. Both the main and the accessory joinder claims can be submitted to court before the closing of the judicial debates phase.

The joinder claim has to comply with formal criteria similar to the writ for suit.

If the court ascertains that there are persons who can raise claims on the subject matter of the case, it is obliged to notify the concerned person about the ongoing lawsuit.

The accessory intervener may also be brought into the trial at the request of one of the parties or by court’s order.

Moldovan law does not regulate the defendant’s possibility to apply for an order requiring a plaintiff to pay a sum of money as security for the defendant’s costs. However, when filing a writ for suit, the legal costs are part of the claim. Therefore, the defendant can only request an interim remedy as described in 4.1 Interim Applications/Motions, including regarding the legal costs.

There are no provisions regarding the costs of interim applications. If an interim application is admitted by the court and the application of seizure over defendant’s assets is ordered, these measures will be applied by the bailiff. The bailiff's expenses shall be advanced by the plaintiff.

The procedural law provides for the principle of judgment within a reasonable time. However, the reasonable time for a judgment depends on a series of variables.

The writ for suit shall be assigned to a judge within 24 hours of its receipt by the court. Within five days of the receipt of the writ the judge shall order:

  • the acceptance of the writ for examination;
  • the refusal to accept the writ for examination;
  • the restitution of the writ and the submitted documents; or
  • the ineffectiveness of the writ and grant, to the plaintiff, a reasonable term in order to properly adjust the writ.

Within 15 days of the date when formality conditions were met, the court shall order the preparation of the case for judicial debates. This decision shall provide the procedural acts needed to be performed, indicating the terms for their performance.

The criteria for determining a reasonable term for the examination of the claim are: the complexity of the case, the behaviour of the participants in the trial, the conduct of the court and of the relevant authorities and the importance of the trial for the interested parties.

If there is a danger of a breach of the reasonable term, the participants may address the court with a request regarding the acceleration of the trial procedure. The examination of the application is made in the absence of the parties, within five working days, by a judge or by a panel of judges other than the one, or ones, examining the case.

In administrative cases, the law expressly provides that the administrative procedure shall be finalised within 30 days.

Discovery is available in Moldova and manifests itself through different mechanisms and methods provided by the procedural law. The discovery process takes place in the preparatory hearing of the case for judicial debates.

Parties can make several requests to the court to prove the circumstances they invoke. The court ultimately decides which requests are admitted and which evidence is accepted for examination. Thus, to obtain evidence, a party is entitled to request permission to question the other party about the circumstances of the case. Requests may not refer to circumstances that the court considers proven.

A party may claim that the opposing party holds a document related to the dispute and the court may then order its discovery.

The parties have an active role in discovery, but ultimately the court decides on the procedural actions to be carried out within the scope of the investigation of the case circumstances.

As a general rule, there are no mechanisms through which the scope and/or costs of the discovery process can be curbed.

Under Moldovan legislation it is possible to obtain discovery from third parties. Therefore, if a document is kept within an authority, organisation or other person or institution, the court, at the request of the party, will order its presentation. Failure to comply with the court's order may lead to a fine.

According to the procedural law of Moldova, the parties have to prove the circumstances to which they refer as the basis for their claims and objections. Thus, each party decides on its own which documents will be presented in court. In cases of insufficient evidences, there is a risk that a claim will be rejected as unfounded. What is specific to the Moldovan jurisdiction is that the parties play an active role in the preparatory hearing for examining the case. Thus, for the better preparation of their position, each party will evaluate what circumstances they want to invoke; what evidence they want to provide; and, in the case of insufficient evidence, they shall submit the necessary requests to the court. The court, in order to ensure a fair examination of the case, may ex officio request the parties to present certain evidences.

Although parties have an active role, it is the court that manages the discovery process. It is the court, at the parties' request, that allows for different types of evidence to be submitted. An alternative to discovery is the judicial delegation. If it is necessary to gather evidence or to hand over judicial documents in another city, municipality or district, the court that judges the case gives the court in that other district, by way of order, a delegation to perform certain procedural acts. The order regarding the judicial delegation shall indicate the circumstances to be clarified and the evidence to be gathered by the executing court of the delegation.

Another alternative to discovery is the possibility of preserving evidence. Trial participants, who are interested in preventing the disappearance of evidence, can ask the court to preserve it. This is done by hearing witnesses, commissioning experts, on-site research, and by other means.

Moldovan legislation recognises the concept of legal privilege. Thus, an attorney will not be able to be heard in court as a witness, as the law obliges him or her to keep information received during the exercise of his or her duties confidential. The same applies to in-house counsel. Both, procedural law and Bar regulations specify this privilege.

Apart from the rules mentioned in 5.2 Discovery and Third Parties and 5.5 Legal Privilege, there are no other rules allowing a party not to disclose a document.

The parties can request the following types of injunctive relief:

  • seizure of bank accounts and goods;
  • prohibition of the defendant and other persons committing certain acts;
  • suspension of the sale of the seized assets concerned; and
  • suspension of the forced execution of goods, based on an enforceable document.

At a party’s request, the court can apply other forms of injunctive relief if there is a risk that the defendant may alienate his or her assets and the non-application of the relief would make future execution of the judgment impossible.

One form of injunctive relief can be substituted for another.

Moldovan procedural legislation does not provide for injunctions to prevent parallel proceedings in another jurisdiction.

The court shall order injunctive relief on the same day it receives the request, regardless of the urgency of the matter. Requests for injunctive relief can be submitted at any phase of the lawsuit, until the court award becomes final. Requests must comprise the grounds and circumstance regarding their necessity.

If the request for injunctive relief is submitted along with the writ for suit, the court shall order the injunctive relief when issuing the order regarding the acceptance of the writ for examination. The acceptance or refusal of injunctive relief will be ordered by a motivated decision, subject to appeal within 15 days.

Injunctive relief is obtained on ex parte basis and the court's decision is based only on grounds and evidence submitted by the plaintiff. The parties shall participate in the ruling only if the request was submitted during the trial hearing. The absence of a party to such a hearing does not affect the court's right to rule regarding the injunctive relief.

When ruling on a plaintiff’s application for injunctive relief, the court might order, at the defendant's request, the payment by the plaintiff of a bail covering the possible damages incurred by the defendant as a result of the application of that relief. If the bail is not deposited within the ordered term, the injunctive relief is cancelled.

If the judgment regarding the rejection of the plaintiff’s claims becomes irrevocable, the defendant is entitled to bring a claim against the plaintiff for compensation for the damages caused by the injunctive relief, regardless of plaintiff’s fault. When the defendant fails to bring a claim within two months of the decision against the plaintiff , that plaintiff is entitled to request back the bail deposited.

The Moldovan courts have jurisdiction only over assets located in Moldova, therefore, injunctive relief cannot be granted by Moldovan courts against the worldwide assets of the respondent.

Injunctive relief cannot be granted against third parties. When the respondent has conveyed his or her assets to third parties, the injunctive relief can be ordered over such assets as well. For example, procedural law provides for consecutive orders regarding the assets that can be frozen. If the goods possessed by the respondent are not enough, injunctive relief shall be ordered over the respondent’s assets held by third parties.

An order for injunctive relief is immediately enforced by the bailiff who applies the seizure over the assets indicated in the order. Therefore, there is little chance of the respondent disobeying such an order.

However, if the seized assets are in possession of third parties and those third parties fail to comply with the injunctive relief order, a fine can be applied. In addition, the plaintiff may ask the faulty party to repair the damage caused by the failure to execute the injunctive relief order.

The trials involve both oral and written procedure, depending on the phase. However, some special procedures are, as a rule, conducted more often in writing.

After the suit is filed in written form, it will be distributed, to the judge or, as the case may be, to the judicial panel randomly, through the Integrated Case Management System. Subsequently, the judge prepares the case for judicial debates.

After sufficient preparation for the case, the judge sets the date and time of the hearing. Depending on the complexity of the case, the court can set the court hearing on several consecutive days.

The hearing begins with a report on the case, presented by the judge, which will include, in brief, the claims and arguments from the suit and the statement of defence, as well as the evidence presented by the parties. Subsequently, the court hears the explanations of the participants in the trial.

During the court hearings, the judge establishes the order of the evidence investigation. This includes the witness and expert hearings, examination of material evidence, etc.

After debates, the judge declares the completion of the examination of the case and passes to the pleadings.

Judicial debates are held orally, and pleadings are held both orally and in writing. Each participant has the right to reply to the other party’s pleadings. The defendant, and his or her representative, have the right to the last reply. After the conclusion of the pleadings, the trial court withdraws for deliberation.

In order to clarify all aspects related to the preparation of the case for judicial debates, especially those concerning the presentation of evidence, the judge can convene the parties in preparatory meeting. During these, the parties can make requests according to the law. Usually, during these meetings, the court co-ordinates the next hearings with the parties and establishes the deadlines for submitting procedural documents.

During a procedure for mandatory amicable settlement of the dispute (mandatory in a litigation whose value is below approximately EUR10,300), the court informs the parties, in a case management hearing, about the law applicable to the litigation, the duration of the proceedings, the possible costs of the case, its possible solutions and their effects on the parties to the trial.

Under Moldovan legislation, jury trials are not available in civil cases.

Evidence in civil cases comprises the factual elements ascertained from the explanations of the parties and other persons interested in solving the case, witnesses' depositions, documents, material evidence, audio-video recordings and expert conclusions.

Each party must prove the circumstances it invokes as a basis for its claims and objections. However, a party who has not fully exercised the obligation to prove certain facts is entitled to bring an action requesting the hearing of the adverse party regarding these facts if the request does not refer to circumstances that the court considers already proven. Moreover, if difficulties arise in the process of gathering the evidence, the court is obliged to contribute, at the request of the parties and other participants in the process, to the collection of the necessary evidence.

All evidence is presented, under the sanction of losing the right to present the evidence at a further stage, within the deadlines established by the court, in the phase of preparation of the case for judicial debates, unless the law provides otherwise.

The court retains for examination only the pertinent evidence that confirms or undermines the conclusions regarding the existence or absence of circumstances, important for the fair judgment of the case.

Evidence obtained through violation of the law is considered inadmissible.

In order to elucidate some point which requires special knowledge, the court has to order an expert witness, at the request of a party or another participant in the process and, in the cases provided by law, ex officio. The judicial expert should usually be registered in the State Register of Judicial Experts. If no expert with the necessary specialisation can be found in the register, or if another judicial expert cannot be appointed for incompatibility reasons, one outside the register will be recognised.

The parties will, by mutual agreement, choose the person or institution of expertise to be appointed by the court. In the absence of the parties’ agreement, the court designates the person or institution to offer their expertise. 

The expert report is prepared in writing and submitted to the court at least five days before the date of the hearing. The expert report is examined in court and evaluated altogether with the other evidence. The expert's conclusion is read in the court hearing and, in order to clarify or supplement the conclusion, the expert may be asked questions.

All court hearings are public. Minors under the age of 16 are not admitted to hearings unless they are cited as a trial participant or witness.

Closed meetings may be held only for the purpose of protecting information that constitutes state secrecy, commercial secrecy or other information whose disclosure is prohibited by law. The court will also order that a secret hearing be held in order to prevent the disclosure of information that relates to the intimate aspects of life; which harms someone's honour, dignity or professional reputation; or in other circumstances that could harm the interests of the participants in the trial, public order or morality.

Transcripts of hearings are available only to the parties of the process and their representatives.

The judge has a leading and active role in organising and conducting the trial. To this end, the judge must, as appropriate, elucidate to the trial participants the important circumstances for deciding the case and investigate the evidence. The court:

  • explains to the parties their procedural rights and obligations:
  • presides over the consequences that the exercise or non-exercise of a procedural act may imply;
  • supports the parties in exercising their rights;
  • orders the presenting of evidence;
  • informs the parties about the mediation process; and
  • takes any other measures necessary for the proper management of the process.

During the trial the judge will order, regarding the party’s requests, the admission or rejection of evidence and over any procedural incidents.

After the conclusion of the pleadings, the judge withdraws for deliberation. In complex cases, the court may delay the judgment for a maximum of 15 days, notifying the trial participants about the place, date and time of the judgment.

The suit filed in the court shall be distributed, within 24 hours, to the judge or, as the case may be, to the panel of judges randomly, through the Integrated Case Management System. The judge accepts or refuses the suit (on the grounds provided by the law) within five days from the distribution, unless the law provides otherwise. The order regarding the preparation of the case for judicial debates shall be issued by the judge, without notifying the participants in the trial, within 15 days from the date on which the suit was accepted in order to be examined, with the listing of the actions to be performed to prepare the case and with an indication of the terms of their fulfillment.

It is difficult to provide general timeframes for civil cases. They should be adjudicated on within a reasonable time and compliance with this is ensured by the court.

As an exception, if the value of the claim in the relevant case does not exceed ten times the average salary, the court resolves the case and adopts the judgment within a maximum of six months from the date of filing the application.

In a situation where, in the trial of a specific case, there is a danger of breaching the reasonable term, the participants in the trial can request the acceleration of the trial procedure. The examination of the application is done in the absence of the parties, within five working days, by a judge other than the one examining the case.

The settlement of a lawsuit can take place at any phase of the trial. The settlement can be reached independently by the parties or through mediation. If the parties try to reach a settlement through mediation, the court is obliged to suspend the proceedings.

When the settlement is reached, the settlement agreement shall be submitted to the court for its approval. Before the approval of a settlement the court is obliged to explain to the parties the legal effects of such a settlement. When ruling for the approval of a settlement, the court also orders the termination of the lawsuit.

From the procedural standpoint the settlement of the lawsuit cannot remain confidential because when approving the settlement and ruling the termination of the lawsuit, the court shall issue an order describing the conditions of the settlement. Given that all procedural documents are published on the court’s website, the settlement conditions will become publicly known.

The enforcement procedure differs depending on the type of the settlement agreement.

When the settlement agreement is reached within a lawsuit and the court approves it, upon a party’s failure to timely execute the undertaken obligation, the other party can address a request for the issuance of an enforcement title to the court.

When the parties concluded the settlement agreement in simple written form or through mediation, the damaged party shall file a writ to the court requesting the approval of the settlement and the issuance of the enforcement title. Notaries can also enforce such settlements.

In all cases, upon the receipt of the enforcement title, it will be presented to a bailiff for forced execution.

The settlement agreement has the force of res judicata. A party can request the annulment of the settlement agreement on general annulment grounds –ie, breach of consent, lack of capacity, illegal object, cause, etc.

A court may grant, to the party in whose favour the award was issued and in addition to the award itself, the payment of legal or contractual interest, of legal assistance fees to the extent they were necessary and documentarily justified and of court fees. Such remedies are granted only if requested by parties.

The creditor is entitled to compensation for the entire damage caused by the non-performance of the obligation, unless the debtor proves that the non-performance is justified.

Upon parties' request, the plaintiff is entitled to the payment of either the contractual or the legal interest rate. The compensation must cover only the damages incurred by the plaintiff as a direct and necessary consequence of the breach of obligation. The damages shall also cover the incurred expenses due to the non-performance and any lost revenue. 

The successful party is entitled to collect interest for the entire period as of submitting the writ until the date the court rules on the award. As of the amendment of the Civil Code on 1 March 2019, the statute of limitations for accrued interest is three years.

Within the enforcement procedure, upon creditor request, the bailiff will calculate and collect the accrued interest due to non-execution. In this case, the post-judgment interest will be calculated as of the issuance of the court award until the actual payment of the amount and the bailiff shall issue the order in this regard only upon the execution of the primary obligation.

If the court award is not willingly executed, the party will submit, to the same court which ordered the award, the request for the issuance of the enforcement title. The creditor will file the enforcement title with the bailiff. There are certain cases provided by law where the enforcement title is filed to the bailiff by the court. The enforcement title can be filed to the bailiff within three years as of the judgment.

By law, the bailiff is entitled to a variety of actions in order to obtain the forced execution of the judgment.

Foreign judgments are recognised and enforced in Moldova where this is provided for in an international treaty to which Moldova is a party, or on the principle of reciprocity regarding the effects of foreign court judgments. A foreign judgment can be duly recognised and enforced within three years from the date the judgment is considered final. The request shall be filed to the court in whose territorial jurisdiction the enforced execution shall be performed.

The request for the recognition and enforceability of the judgment shall be examined in a court hearing and that court can order the recognition of the judgment or its refusal. A refusal is subject to appeal. 

Moldovan procedure provides for two levels of appeal in order to remedy errors in the assessment of the merits of the case or violations of procedural rules.

First Instance Court judgments are subject to appeal, ruled by the territorially competent Court of Appeals.

The judgments of the Courts of Appeals are subject to a second appeal, to be ruled by the Supreme Court of Justice.

Other orders issued by the First Instance Courts are subject to appeal to be filed at the territorially competent Court of Appeals. In which case the effect of the appealed order is suspended, except when otherwise provided by law.

Finally, the law provides for an exceptional appeal – the review of irrevocable judgments, which is available under very strict conditions.

The first and second appeals on judgments can be granted provided that the inferior court violated or misapplied the material and procedural law. The appeal is granted if it falls under at least one of the specific grounds provided by the procedural law.

The first appeal is ruled by the Court of Appeals in accordance with the territorial jurisdiction, by a panel of three judges.

The second appeal is ruled by the Supreme Court of Justice by a panel of five judges. In order to pass to the examination of the appeal by the Supreme Court of Justice, a panel of three judges will examine the admissibility of the appeal. The judge's ruling over the admissibility of the appeal can contribute to the examination of the appeal on the merits.

The court ruling on the appeal verifies the legality of the contested court judgment within the limits of the request for appeal as well as that of the statement of defence and the objections submitted. Only in exceptional cases will the judgment of the First Instance Court be cancelled, regardless of the grounds provided in the request for appeal. In all cases, the court shall rule over all the grounds from the request for appeal.

The appeal from the First Instance Court must be submitted within 30 days and the appeal from the Court of Appeals must be submitted within two months of the communication of the judgment. The appeal from the First Instance Court is submitted to the respective First Instance Court, which subsequently shall send the request and case files to the court of appeal. The second appeal shall be registered directly to the Supreme Court of Justice. The procedural law provides for specific elements to be included in the request for appeal. The request for appeal shall provide for the factual and legal grounds of the appeal.

The court of appeals examines the appeal in the presence of the parties, meanwhile the Supreme Court of Justice examines the appeal without the parties and only as an exception can the panel decide to convene a hearing with the parties.

The rules applied to the procedure in front of the First Instance Court shall apply to appeals too, expect when expressly provided otherwise.

Appeals are reviewed within a thorough procedure, which includes all phases of the procedures held in the First Instance Court. The appeal is examined on the merits only if the appeal is grounded on the breach of material legal provisions.

However, in appeal proceedings the parties cannot bring new claims or points before the Court of Appeals and only in limited cases can new evidence be administrated.

The party may present new evidence in appeal only if:

  • the party was unable to present the evidence in the First Instance Court;
  • the administration of the evidence does not interrupt the sitting;
  • the evidence was not claimed by the First Instance Court at a party’s request; or
  • they were unreasonably returned by the First Court.

The court cannot impose any conditions on granting an appeal, as long as the formal conditions for filing it were complied with.

After hearing the appeal, the Court of Appeals may:

  • reject the appeal and uphold the judgment of the First Instance Court;
  • admit the appeal and modify the decision of the First Instance Court;
  • completely cancel the judgment of the First Instance Court and send the case for re-examination in that court; or
  • cancel the judgment of the First Instance Court, in whole or in part, and order the termination of the process or the writ for suit from the docket.

Upon filing a lawsuit, the claiming party is responsible for its own litigation costs, which shall include the state duties, the legal assistance fees and any other incidental fees. There are specific cases, provided by the law, when the party is exempted from the state duty or the state duty can be paid in instalments.

The court orders the party that has lost the trial to pay the party, in whose favour the award was granted, the costs of the proceedings. If the plaintiff's action has been partially admitted, he or she shall be compensated for the costs in proportion to the admitted claims. If the judgment is appealed, and subsequently modified or a new judgment is given, the superior court may appropriately change the distribution of the costs.

Only in the case of legal fees, may the court limit the amount requested. Therefore, the court orders the losing party to compensate the other party for its legal assistance expenses, insofar as they were real, necessary and reasonable. These costs are compensated to the party only if he or she was represented in court by an attorney.

In practice, in order to establish to what extent the legal assistance expenses were real, necessary and reasonable, the party shall present the proof of paying those costs and the attorney shall present a report of activity in which the actions undertaken and the time spent shall be indicated. Also, when ruling on the legal assistance expenses, the court takes into consideration the recommendations of the National Bar Association on the legal fees of attorneys.

The law does not provide for the possibility to award interest on costs.

The most common form of alternative dispute resolution (ADR) is the conciliation of the parties which is usually organised by their attorneys.

Such conciliation may take place before or during a trial, with or without the assistance of a mediator.

In the past three years mediation has been constantly discussed and advertised, parties are subsequently choosing mediation more often. Even the court, in the preparatory phase, has to inform the parties about mediation procedures, the advantages and parties’ rights in this regard. Also, upon the request of the parties, the court shall grant a term for them to reach a settlement.

Moreover, in order to promote mediation, the law provides incentives for the parties reaching a mediation settlement during a trial. Hence, when the parties conclude a settlement agreement assisted by a mediator, 100% of the state duty shall be reimbursed by the state if the settlement is reached in the First Instance Court, 75% if the settlement is reached in the Court of Appeals and 50% when reaching a settlement in the Supreme Court of Justice.

Institutional arbitration is also used as an ADR process.

As of 2017, the procedural law was amended and judicial mediation was made mandatory in several types of suit –ie, consumer protection, family disputes, labour disputes, inheritance disputes, disputes which have a material value of less than EUR10,300, etc.

Upon parties’ request, judicial mediation can take place in other cases.

When receiving the writ for suit, the court shall convene the parties for an amicable settlement of the dispute within five days. The court undertakes measures in order for the parties to reach a settlement and the parties will be granted a term of 15 days to reach such. Overall, the judicial mediation procedure shall not exceed 45 days, as of the date the court convened the first hearing.

There are several settled arbitration institutions in Moldova, such as the International Commercial Arbitration Court of Chisinau, the International Commercial Arbitration Court of the Chamber of Commerce and Industry of Moldova and the Court of Arbitration of the International Association of Car Carriers of Moldova.

Mediation is allowed to be practised by registering a cabinet or an associate mediation firm. Attorneys are allowed to practice mediation within their cabinet or law firm. The national body co-ordinating the activity of mediators is the Mediation Council, incorporated in 2007.

In Moldova, the Law on Arbitration and Law on International Commercial Arbitration, both effective as of 2008, regulate the arbitration procedure. Arbitration is also regulated by the internal regulation of the institutional arbitration bodies and ad hoc arbitration is permitted.

The legal framework on arbitration is composed mostly of non-mandatory provisions and the parties are entitled to provide, in the arbitration convention, their own rules.

Where the action on the dispute that constitutes the subject of an arbitration clause is filed in court, at the other party’s request, the court will refuse to accept the claim for examination and will sends the dispute for settlement in arbitration, except when the court finds that the clause is null, invalid or unusable for execution.

Any patrimonial right may be the subject of an arbitration agreement. An arbitration agreement on non-patrimonial rights may have legal effect, insofar as the parties are entitled to conclude a transaction regarding the subject matter of that dispute.

The arbitral award can only be cancelled in the cases expressly provided for by the procedural law, within three months of receipt of the award.

Grounds for arbitral award cancellation are, inter alia, the dispute examined by the arbitration not being allowed to be the object of the arbitral debate; the arbitration agreement being null and void; the arbitral award not including the ruling and the grounds, place and date of the ruling or not being signed by the arbitrators; and the award contains rulings that cannot be enforced.

The request for cancellation of the arbitral award must be substantiated and the court shall decide on it within one month as of its receipt. Orders on cancellation or maintenance of arbitral awards are subject to appeal.

The award granted in an arbitration is mandatory and shall be executed immediately, or within the term prescribed by that award. However, the party in whose favour the award was granted can request, from a First Instance Court, the issuance of the enforcement title in order that the arbitration award be forcibly executed.

Foreign arbitral awards are subject to recognition and enforcement proceedings before the Moldovan Courts of Appeals. The court shall summon the debtor regarding the hearing on the approval of the foreign arbitration award, however, his or her failure to be present in court does not hinder the examination. A foreign arbitration award may be recognised and enforced in Moldova if that award was issued in accordance with an arbitration agreement and on the territory of a foreign state which is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Judgments, adopted in New York on 10 June 1958. Foreign arbitration awards can also be recognised and enforced if they are regulated, either by an international treaty to which Moldova is a party, or on the basis of the principle of reciprocity regarding the effects of the foreign arbitration award.

Efrim Roșca & Associates

72 Bucuresti Street
Chisinau
Republic of Molodva, MD-2012

+373 22 238301

+373 22 238303

info@era.md www.era.md
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Law and Practice

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Efrim Roșca & Associates has a team composed of nine lawyers, of which two are partners, with its headquarters located in Chisinau, Moldova. The team has professional legal experience of between five and 20 years in litigation matters, especially commercial disputes. During the last two years, it has successfully represented clients in commercial and litigation matters worth more than USD100 million (approximately 1% of Moldova’s GDP). ERA has successfully represented Brio Sonores, a famous pop group in both the Republic of Moldova and abroad, regarding a dispute related to their trademark registration. The firm's work has forged new paths and had a significant impact on judicial practice in two different landmark cases: the ProEuroConsult case regarding the illegality of limitation of liability in casualty and collision insurance agreements and the METRO Cash and Carry case regarding copyright remuneration.

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