Recognition And Execution Of Foreign Arbitration Judgments

• Author: Laura Rudnyanszky
• Pages: 205-213

RECOGNITION AND EXECUTION OF FOREIGN ARBITRATION

JUDGMENTS

Laura RUDNYANSZKY1

Abstract

International commercial arbitration system i s enshrined in both national legislation an d international

conventions. The power of the arbitrators to resolve the dispute is conferred by the parties, who agree that their

litigation be brought to the attention of private individuals. To that end, the parties to the dispute designate the

arbitrators and undertake to accept the decision they will make. Such a procedure has three distinctive characters:

arbitrary, commercial and international2. The impo rtance and effectiveness of arbitration in international relations

have been recognized by the Final Act of the Conference on Security a nd Cooperation in Europe o f 1 August 1975. In

order to contribute to the development and promotion of trade and cooperation, the participating States at the Helsinki

Conference recommend to bodies, firms in their countries include, where appropriate, arbitration clauses in

commercial contracts and industrial cooperation agreements or special co nvention. In the same spirit, the United

Nations General Assembly recommends, in its preamble to Resolution n o. 31/98 of 15 December 1976, which adopted

the Arbitration Reg ulation drawn up by the United Nations Commission on International Trade Law, its dissemination

and its widest possible application in the world, thus recognizing the usefulness of arbitration as a method of settling

disputes arising from international trade relations.3In conclusion, in international trade rela tions, most of the litigation

between participants is settled by arbitration as a fo rm of private jurisdiction. Arbitration is an appropriate means to

quickly and fairly regulate disputes that may result from commercial transactions in the field of goods and services

exchanges.4

Keywords: foreign arbitration, arbitrary decisions, conventional law, a rbitrary procedure in international trade

disputes.

JEL Classification: K12, K33, K41

1. Introduction in foreign arbitration judgements

In the new Code of Civil Procedure, we encounter provisions on the recognition and

enforcement of foreign arbitral awards in Art. 1109-1118 of Chapter II, Title IV of Book VII.

According to art. 1109 N.C.P.C. Romanian, a foreign arbitral award is a judgment given on

the territory of a foreign state or is not considered as a national decision in Romania. The provisions

of paragraph 1 of Article 1 of the New York Convention of 1958 refer only to the alienity of the

arbitration award, without defining two criteria, one principal and the other one subsidiary. Not

being cumulatively requested, the existence of one of them ensures the alienity of the arbitration

award. The first criterion is objective and geographical and refers to arbitration awards that are

foreign when they were given in the territory of a state other than that where recognition and

enforcement are required. The second criterion is subjective and refers to foreign arbitration awards

which are not considered as national in the state where recognition and enforcement are sought.

Arbitration decisions are to be enforced. By virtue of the binding effect of the judgment, the

party who lost the arbitration is obliged to voluntarily execute the benefits to which the arbitral

tribunal has been ordered (the handing over of a good to the other party, the payment of a sum of

money, the performance of a benefit, etc. - restoring or recognizing thus the violating subjective

right of the other party). If the execution takes place voluntarily, no problem arises.

In practice, sometimes convinced of the fairness of the judgment, the debtor will voluntarily

execute the benefit to which he was compelled, but most often, when he refuses the voluntary

execution, the legislator instituted the possibility of enforcing the judgment, with the help of the

1 Laura Rudnyanszky - Legal advisor at Teleperformance, Mediator at Laura Rudnyanszky - Mediation Bureau,

laura.rudnyanszky@gmail.com.

2 A. Severin, Fundamental Elements of Law of International Trade, Ed. Lumina Lex, Bucharest, 2004, p. 369.

3 I. Macovei, The Right of International Trade, Volume II, Ed. C.H.Beck, Bucharest, 2009, p. 263.

4 Idem, p. 263.