Отмена арбитражного решения в Республике Молдова: полезные судебные ориентиры для практиков

The annulment of an arbitral award is an exceptional mechanism of judicial review, applicable within the strict limits provided for by art. 480 para. (2) of the Code of Civil Procedure. However, the practice of the courts shows that this avenue has real practical relevance, especially in cases where the arbitral tribunal was appointed without a valid arbitration agreement, was improperly constituted, violated the right to defense or issued a decision contrary to the fundamental principles of the legislation of the Republic of Moldova.

A first frequent ground for termination concerns situations in which the dispute could not be examined by arbitration.

Thus, in the case SRL „Europrod Invest” v. SRL „Unicart-Service”, the Chisinau Court of Appeal held that the parties had provided in the contract for the settlement of disputes amicably or in the competent court of the Republic of Moldova, without any arbitration clause. Under these conditions, the examination of the case by arbitration was considered illegal, being the ground for termination provided for in art. 480 para. (2) let. a) CPC.

The same logic is found in the case SRL “Venador Prim” v. SRL “Transagroprom”, where the Chisinau Court of Appeal rejected the attempt to extend the effects of an arbitration agreement included in a 2013 contract to a separate contract concluded in 2015. The court emphasized that an arbitration clause cannot automatically produce effects for a new legal relationship, in the absence of a causal link and an express stipulation.

Also, in the case ÎCS „Masarax-Com” SRL v. SRL „Belautomaz”, SRL „Vitasar Trans”, the Chisinau Court of Appeal ruled that the arbitration did not have substantive jurisdiction to judge the nullity of legal acts concluded by a debtor in insolvency proceedings, as such disputes fall within the exclusive jurisdiction of the insolvency court.

The arbitral award must include the essential elements provided for by law, and their absence may lead to annulment.

In the case of SC „Demian-Com” SRL and SC „Valenagro Com” SRL v. SC „Gersola” SRL, the Chisinau Court annulled the arbitral award because it did not contain a disposition, and the minutes did not indicate that a disposition had been issued. The court held that the mere mention that the action was partially admitted cannot substitute for the disposition of the award.

This case confirms that the formal requirements are not purely decorative, but relate to the very legal existence of the arbitral act and its possibility of enforcement.

Another important ground for annulment concerns the composition of the arbitral tribunal and the conformity of the procedure with the arbitration agreement.

In the case SRL „Free Lander” v. SRL „Agristan”, the Cahul Court of Appeal found the existence of a conflict of interest of the arbitrator, as he was previously a member of the auction committee that sold the goods from which the disputed claims arose. The court considered that this circumstance casts doubt on the independence and impartiality of the arbitrator and justifies the annulment of the arbitral award under art. 480 letter e), but also letter h) of the CPC.

In the case State Road Administration v. Enterprise Badprim SRL and Ecotehlider SRL, the Chisinau Court of Appeal held that the parties had agreed to examine the dispute in an ad hoc arbitration procedure, not in institutionalized arbitration. Since the dispute was nevertheless examined by an arbitration institution, the court concluded that the arbitration was not constituted in accordance with the arbitration agreement. In addition, the Court highlighted that a final arbitral award declining jurisdiction had already been issued, which could not be ignored.

Jurisprudence shows that one of the most frequent reasons for dissolution is the violation of the right to defense.

In the case Lidia Vița v. SRL „BPM-Plus”, the Chișinău Court of Appeal held that the defendant was not notified of the decision on the appointment of the arbitrator and that the dispute was examined in her absence, in violation of the arbitration court’s own regulations. The court also noted that the principal debtor had not even been involved in the process, although the plaintiff had been called to arbitration as a guarantor.

In the case of SRL “Lariland” v. SRL “Garma-Grup”, the Ungheni Court of Appeal found that the mere sending of the summons, returned with the words “left” and “no one lives”, was not sufficient to justify the rapid transition to public summons. The court concluded that the arbitration did not exercise the necessary diligence to effectively notify the defendant.

In the case of SA “Avicola Nord” v. SRL “Imperiul Juridic”, the Bălți Court of Appeal found that the defendant was not sent the notification inviting him to appoint the arbitrator, thus violating the procedure provided for by the Law on Arbitration.

Also in the same logic, in the case SRL "Nicolas Construct" and Nicolai Dica v. SRL "BPM-Plus", the Chisinau Court of Appeal annulled the arbitration award after holding that one of the parties had presented a certificate of temporary incapacity for work, which demonstrated the objective impossibility of appearing at the hearing.

The ground provided for in art. 480 par. (2) letter h) of the CPC has a wide application in practice and covers situations in which the arbitral award contravenes legality, adversarial proceedings, equality of arms, consumer protection or other essential principles.

One of the most relevant cases is SIA „Fertco” v. SRL „Vest-Resurs” and SRL „Tarservice-Companie”, where the Chisinau Court of Appeal identified multiple violations: violation of the principle of contract relativity, calculation of damages taking into account the interests of a third party, use of irrelevant and inadmissible evidence, application of compensation without legal basis and ignoring claims brought to the court. The court qualified these irregularities as violations of the fundamental principles of the legislation of the Republic of Moldova.

In the case SRL “Stoji-Grup” and Jitari Vladimir v. SRL “Mobvaro-M”, the Balti Court of Appeal found that the defendant was not notified of the documents by which the plaintiff amended his claims. The court held that there was a violation of the right to a fair trial and equality of arms.

In the case Daniela Guțu v. SRL “Iute Credit”, the Chișinău Court of Appeal held that the arbitral tribunal did not analyze the possible abusive nature of the contractual clauses invoked against the consumer, nor did it demonstrate that the defendant’s arguments had been effectively examined. The court considered that the arbitral award violates the principle of legality and good morals.

The same orientation is observed in the case Ursachii Vadim v. "Iute Credit", in which the Chisinau Court of Appeal sanctioned the collection of exorbitant interest and penalties, considered contrary to the imperative norms regarding consumer protection and good morals.

In the case ÎI “Marcela – A. Roșca” and Roșca Andrei v. SRL “BPM-Plus”, the Chișinău Court of Appeal qualified as abusive the arbitration clause inserted in an adhesion contract. The court showed that the contractual balance would have been respected if the option for arbitration had been expressed after the dispute arose, not imposed in advance through an unnegotiated clause.

In the case SRL „Drag-Star” v. SRL „Pereflex”, the Chisinau Court of Appeal observed that the arbitration award and the minutes reflected the exclusive examination of the plaintiff’s evidence, without the actual investigation of the defendant’s defenses. The court considered that equality of arms, adversarial proceedings and the right to a fair trial were violated.

In some cases, the courts considered that the arbitral tribunal had seriously affected the right to defense by unjustified refusal to provide relevant evidence.

Thus, in the case SRL “Ioxaleama” v. SRL “BPM-Plus”, the Balti Court of Appeal found that the arbitration had refused both to involve a third party in the trial and to hear him as a witness, although the request had been made by the defendant and concerned a relevant aspect of the dispute. The court qualified this conduct as a violation of equality of arms and adversarial proceedings.

In the case Cornilov Liubovi v. SRL "Chimplant Consulting", the courts held that the arbitrator did not order the graphoscopic expertise requested by the defendant, and the decision did not contain a real analysis of her arguments, including in terms of the defect of consent.

Also, in the case SRL "Specimen" v. SC "BTS Company" SRL, the Bălți Court of Appeal considered the request for postponement filed by the defendant's lawyer to be well-founded and found that the arbitration affected the right to defense by examining the case in the absence of the defense attorney, although there was sufficient time to schedule a new hearing.

In the case SC “Universal-Farm” SRL v. ICS “Raiffeisen Leasing” SRL, the Chisinau Court of Appeal found that the dispute had already been finally resolved by a previous arbitration award. However, the arbitration tribunal continued to examine the new claim, although the conditions for terminating the proceedings or removing the claim from the list were met. The court found a violation of the principle of legality, the authority of res judicata and the requirements of a fair trial.

In the case ÎM „Teledixi” SRL v. ÎCS „Casa Media Plus” SRL, the Chisinau Court of Appeal held that the arbitral tribunal did not respect the principle of the binding force of the legal act and did not invoke ex officio the absolute nullity of some acts, although the civil law required this conduct.

National jurisprudence reveals that the annulment of the arbitral award does not represent a way to re-examine the merits, but a control of legality limited to essential defects. Several recurring vulnerabilities emerge from the practice of the courts:

Firstly, the lack or unjustified extension of the arbitration agreement, as evidenced by the cases of “Europrod Invest”, “Venador Prim” and “Masarax-Com”.

Secondly, the failure to comply with the rules for the establishment of the arbitral tribunal and the requirements of impartiality, reflected in the cases of “Free Lander” and “State Roads Administration”.

Thirdly, the deficiencies in summons and the limitation of the right to defense, highlighted in the cases of Lidia Vița, “Lariland”, “Avicola Nord” and “Nicolas Construct”.

Fourthly, the violation of the fundamental principles of the legislation of the Republic of Moldova, in particular the adversarial nature, equality of arms, legality and consumer protection, as evidenced by the cases of “Fertco”, “Stoji-Grup”, Daniela Guțu, Ursachii Vadim, “Drag-Star” and “Ioxaleama”.

In practical terms, this jurisprudence is useful both for formulating a well-argued request for annulment and for preventing defects that may compromise the validity of the arbitral award. In other words, the stability of an arbitral award depends not only on the solution rendered, but also on the rigor of the arbitration agreement, the legality of the procedure and the effective observance of the procedural guarantees of the parties.