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Mușat & Asociații has successfully represented Delta Antrepriză de Construcții și Montaj 93 S.A. before the International Court of Arbitration of the International Chamber of Commerce and Industry in Romania in a complex arbitration arising from the performance of a FIDIC Rosu agreement, the value of the dispute exceeding EUR 1.5 million.

The attorneys at Musat gained a landmark decision in terms of the annulment in arbitration of an ascertaining document certifying the alleged failure of the economic operator to fulfil the contractual obligations. By reference to the national courts’ practice, the novelty consisted in holding the jurisdiction of the arbitration court upon the annulment of the ascertaining document.

Mr. Gheorghe Buta, PhD, Senior Partner, Head of the Litigation Department: Holding the jurisdiction of the arbitration court upon the annulment of the ascertaining documents, fact also confirmed by the Bucharest Court of Appeal, is good news for contractors having arbitration provisions in the agreements concluded with the public authorities. Such can obtain faster remedies in terms of the ascertaining documents, inclusively by resorting to the Emergency Arbitrator which has been recently introduced in the Arbitration Rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.”

In settling the dispute, the arbitration tribunal was vested with analysing complex matters arising from both the fact that the contracting authority was not entitled to charge delay penalties with a significant amount and from the right of the economic operator to receive the equivalent value of the additional works carried out.

By the arbitral award rendered entirely in favour of the economic operator, the team at Mușat & Asociații obtained both the recognition of claims and the annulment of the ascertaining certificate issued by the contracting authority.

Iulian Popescu, Deputy Managing Partner: “The arbitration dispute raised extremely interesting legal matters both in terms of procedural aspects regarding the jurisdiction of the arbitration tribunal over the request for annulment of the ascertaining document and in terms of the legal possibility of contractors to recover the amount of the additional works in certain specific circumstances.

The Bucharest Court of Appeal rejected the action for annulment filed by the contracting authority against the arbitration award.

The team at MUȘAT & ASOCIAȚII assisting the client in this case before the International Court of Arbitration of the International Chamber of Commerce and Industry in Romania was made up of lawyers with a broad expertise in the field of arbitration. The team was led by Mr. Gheorghe Buta, PhD, Senior Partner and Head of the Litigation & Arbitration Department at MUȘAT & ASOCIAȚII, and by Iulian Popescu, Deputy Managing Partner and Head of the Public Procurement & PPP Department.

The attorneys involved in the case were: Iuliana Iacob, Managing Associate, Ramona Cîrlig, Managing Associate and Ioana Cojocaru, Senior Associate.