Tempus Fugit. This maxim time flies is one which all lawyers especially Romanian lawyers are well aware of.
We were recently concerned with this in relation to a Foreign client and it made us realize the difference in approaches by Civil law lawyers and Common law lawyers.
Civil law is by it’s very nature is rule driven. There is little or no discretion in relation to the implementation and the interpretation of the law. Judges are not required to decide on the merits of a case but only to apply the facts of a case in accordance with the legal provisions. Changes introduced by the Romanian Civil Procedural Code can catch out the unwary as the enforcement of time limits set out in the Code are strictly adhered to and can be very stringent.
The understanding of these facts is very important especially to foreigners and those not used to a Civil law system. A Common law approach can lead to difficulties. It is very important if you are a company or individual based abroad and you receive court proceedings. Depending on the location of the company or individual whilst the rules of service will be those applicable to where you are resident or domiciled once you have been properly served with any Romanian court proceedings then the time limits and requirements of the Romanian procedure must be strictly observed.
Service of documents in the proceedings is usually in accordance with the service procedure rules of where the defendant is situated. If proceedings are received by post whether registered or not, then you should ensure that the envelope containing the proceedings is retained and a copy of any signed receipt taken. If documents are delivered by hand, ensure that a receipt is given, and the documents signed for. Keep copies. The documents, which should have been served with should include a translation in your own language and will contain time limits to do something. You need to be aware that these time limits are provided for by the law and can in most cases not be varied.
If you receive what appear to be court proceedings and a subpoena immediately contact a Romanian lawyer who can explain to you the impact of the documents, what you must do and the risks that you run by ignoring either the proceedings or the times set out in the document. If you fail to file a defence within the times specified, then you can be denied the right to raise a defence by filing documents which support your position in the action, and there will then be additional costs of an appeal if you lose the case because of failing to file documents.
We have been involved in cases where the jurisdiction of the Romanian courts has been an issue which is often the case in respect of international agreements. We had to explain to the client that not only had we to object on the jurisdictional issue but at the same time we had to file a full and proper defense to the action. There is no discretion in the Civil Procedure rules that allows two bites at the cherry. The Romanian court will not consider jurisdiction first and then if it decides that it has jurisdiction allow a period of time to file a defence. The rules require a defence to be filed within 25 days of the proceedings having been received. This means that you must object to the Romanian courts having jurisdiction and file the defence all within the same strict time period. The Romanian courts will consider the question of jurisdiction first and if they decide that they have jurisdiction then they will consider the defence.
Should you fall foul of these time periods then you do not have the right to put in evidence to support your case you can only defend by using the evidence which the plaintiff has used to support its case.
Lawyers in other jurisdictions need to be aware of these Romanian provisions in the event of a client bringing to them Romanian proceedings. If they fail to appreciate the strict nature of the time limits involved they can inadvertently allow their client to be in a difficult position if not impossible position without the right of defense in respect of Romanian proceedings.
As in all these matters taking advice at the earliest opportunity is important to ensure that you can properly defend yourself in the event of a claim being brought against you, and if neccesary bring a counter claim.