From 2010 to 2017 the execution of public works in Romania took place by virtue of the General Conditions of Contract of FIDIC Yellow Book or Red Book approved by Government Decision no. 1405/2010. In 2011 the Romanian Ministry of Transportation and Infrastructure issued Order no. 146/2011 whereby it approved standard forms of particular conditions of contract, appendix to tender and contract agreement for execution of such public works.
In particular, the appendix to tender modified the provisions of Sub-Clause 20.6 regarding the arbitral institution empowered to settle the disputes resulted from public procurement contracts based on FIDIC Conditions of Contract. The mention included in the appendix to tender in this regard referred to “the Court of International Commercial Arbitration”, an incomplete reference to the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.
Encouraged by a far too creative interpretation, mainly based on reasons of semantics instead of being based on the clear rules for interpretation provided by the Romanian Civil Code, a significant number of contractors submitted their disputes with the National Company for Administration of Road Infrastructure in Romania (“NCAIR”) to the ICC International Court of Arbitration.
In 2018 the Bucharest Court of Appeals decided with regard to two (2) such arbitral cases to set aside the final partial awards issued under the auspices of the ICC International Court of Arbitration, considering that the arbitral tribunals were not constituted in accordance with the arbitral agreement of the parties, and that the institution which has jurisdiction to settle the disputes resulted from performance of FIDIC public procurement contracts concluded under Government Decision no. 1405/2010 and Order no. 146/2011 is the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.[1]
The aforementioned decisions of the Bucharest Court of Appeals are not final and may be appealed at the High Court of Cassation and Justice, yet with little chances to be overturned under the Romanian Law.
Confronted with the aforementioned jurisprudence of the Bucharest Court of Appeals, another contractor which submitted its disputes with NCAIR to the ICC International Court of Arbitration based on the same reasons of semantics and has its arbitral case pending, vested the Bucharest Tribunal with a request to issue an injunction “to remove the hindrance occurred with regards to the permanent arbitral institution which must administer the arbitral case” and to decide that the ICC International Court of Arbitration is the right arbitral institution to administer its case[2]. The Bucharest Tribunal admitted this request for injunction.
Under the Romanian Law it is highly debatable if the contractor could have used this procedural pathway to obtain a clarification from a lower court with regard to the arbitral institution to administer its arbitral case. Also highly debatable are the reasons for which the Bucharest Tribunal admitted the contractor’s request for an injunction.
Conversely, what is indeed crystal clear is that the injunction issued by the Bucharest Tribunal has only an interim nature under the Romanian Law.
This means that at the end of the arbitral case when an award will be finally issued under the auspices of the ICC International Court of Arbitration, the Bucharest Court of Appeals will still have the full power to set aside the arbitral award in accordance with its previous jurisprudence, irrespective of the injunction issued by the Bucharest Tribunal.
A full analysis of this matter will be presented at the 13th International Conference “Challenges of the Knowledge Society” organized by “Nicolae Titulescu” University and “Nicolae Titulescu” Foundation of Law and International Relations, Complutense University of Madrid and Deusto University of Bilbao, in May, in Bucharest.
[1] In this respect please refer to Court case no.3261/2/2017** – NCAIR v. Salini Impregilo S.p.A. (regarding the final partial awards issued in the ICC case no.21328/MHM/2015); and Court case no.5771/2/2017* – NCAIR v. JV Teloxim Con SRL – SC Comsa SA – Aldesa Construcciones SA – SC Arcadis Eurometudes SA (regarding the final partial awards issued in the ICC case no.21466/MHM (c.21775/MHM)).
[2] Please refer to Court case no.14400/3/2018 – JV Astaldi S.p.A. – Max Boegl România SRL v. NCAIR (referring to the ICC case no.22145/MHM)
