Moldova is a member state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It is also a UNCITRAL Model Law country when it comes to international and domestic arbitration. In addition, Moldova has several treaties on recognition and enforcement of foreign civil (commercial) judgments. Still, as practice shows, the process of recognition and enforcement in Moldova remains cumbersome and time consuming.
Planning on filing a request in Moldovan court? Be prepared to disclose the full corporate structure and the powers of signatories
Although the Moldovan Code of Civil Procedure clearly states the court to which a request must be addressed (Court of Appeal at the seat of the respondent for arbitral awards, and first instance court for foreign judgments), the content of the request and the documents to be enclosed (mainly the originals of the arbitral award / judgment, arbitration agreement, proof of being final, legalised translation, and the like), in practice, before accepting a request for review a Moldovan judge may demand documentary evidence on identity and powers of individual(s) signing the request, other documents, and/or even the attorney’s power of attorney. Moldovan judges seem distrustful of signatures and stamps applied abroad and sent to Moldova. Claimants are often required to provide legalised (and apostilled) and duly translated copies of corporate documents, fresh trade register excerpts, internal regulations and the like to attest expressly that a certain official can sign and engage on behalf of the claimant. To make matters worse, occasionally a Moldovan judge can request confirmation that the signature on the document actually belongs to the signatory or certain trivial information about the debtor (e.g. fax number). In practice, besides causing additional delays (formalities before a notary, translations, etc.) and costs (which the judge occasionally excludes from enforcement), such an unorthodox approach implies the risk of omission of procedural terms (e.g. three-year statute of limitations to apply for recognition and enforcement).
To overcome a demand from a judge a claimant must either contest it or produce additional information.
What about interim relief?
Interim relief can be sought together with the request for recognition and enforcement. An unwritten rule is that the higher the amount in dispute, the lower the chances of getting interim relief before the court pronounces on the merits of the request. The usual reason for refusal is insufficient motivation. The recent “trend” is spicier: no interim relief can be granted in relation to a foreign judgment which is not final yet (for clarity, this is in a case where a final foreign judgment is being solicited for recognition). Unfortunately, recourses against such refusals are upheld by the superior court.
Burden of proof on the respondent? Never heard of it
Practice has shown that when reviewing a request for recognition and enforcement, Moldovan judges often require claimants to produce additional documentation to “defend” their claims. A simple oral statement by the respondent that it is considering setting aside the foreign arbitral award may force the claimant to produce proof that the term for filing a set-aside action expired long ago or that there was no such action by the respondent in the country where the arbitral award was rendered.
Today it cannot be excluded that, like back in the 90s, a Moldovan judge may want to understand the merits of the case before pronouncing itself on the request.
What about timing?
Besides the wording within a reasonable time, the Moldovan procedural legislation currently does not contain any provision on the maximum timing of such claims. Recent cases show that a request for recognition and enforcement of a rather simple foreign arbitral award can easily exceed two and a half years (in the Chisinau Court of Appeal), with no interim relief being granted.
To the extent possible, attempt enforcement abroad too. Apply for recognition and enforcement in Moldova as soon as practically possible. Do not delay the application. And when applying for recognition and enforcement in Moldova, make sure to have an experienced attorney on your side to successfully guide you locally.
There is room for improvement for the Moldovan judicial system. The rigid and unorthodox approach must change. Foreign arbitral awards and judgments have the right to be recognised and enforced in Moldova. The good news is that there are excellent local specialists who are ready to fight for their clients’ rights and money.
Vladimir Iurkovski, Office Managing Partner Moldova SCHOENHERR & ASOCIAȚII