Court decisions

Selected decisions of Slovenian courts.

APPELLATE COURTS OF THE REPUBLIC OF SLOVENIA

Decision of the the Higher Court in Koper: VSK Decision Cpg 145/2009

The legal relationship giving rise to the assigned claim is also accompanied by a clause on the resolution of disputes by arbitration. Such an agreement requires an analogue application of the rule of the transfer of secondary rights referred to in Article 428, Paragraph 1 of the Code of Obligations.

Decision: VSK Decision Cpg 145/2009

Decision of the Higher Court in Koper: VSK Decision Cp 498/2009

They provided for any disputes between individual parties arising from the implementation of the provisions of the Self-management Agreement to be settled by arbitration. The concluded arbitration agreement is not applicable under the conditions of altered socio-economic and property relations that, according to the plaintiff, should result in the plaintiff’s title to the real-estate.

Decision: VSK Decision Cp 498/2009

Decision of the Higher Court in Ljubljana: VSL Decision II Cp 859/2009

The Civil Procedure Act in force in 1995 did not permit ad hoc arbitration but only institutional arbitration.

Decision:  VSL Decision II Cp 859/2009

Decision of the Higher Court in Ljubljana: VSL Decision of I Cpg 927/2009

The provisions of Chapter XXXI of the Civil Procedure Act still apply in the present case. The proceedings commenced on 31/11/2007 and the Arbitration Act that entered into force on 09/08/2008, fully revoking the said Chapter of the Civil Procedure Act, stipulated in the Transitional Provisions that proceedings before courts on the date on which the Act became effective shall continue under the regulations hitherto in force. The Court with which the lawsuit pertaining to the dispute that the parties had agreed to resolve by arbitration was filed shall declare lack of jurisdiction only upon the defendant’s objection that must be raised at the first main hearing at the latest before considering the main matter.

Decision: VSL Decision I Cpg 927/2009

Decision of the Higher Labour and Social Court: VDS Decision Pdp 656/2010

Given the fact that, in its statement of defence, the defendant did not claim to have agreed with the plaintiff on the settlement of the dispute by arbitration within 30 days from the expiration of the period for the fulfilment of obligations or remedy of violations, the plaintiff was entitled to file the lawsuit directly with the court. Under such circumstances, the agreement on the settlement of a dispute by arbitration agreed upon in the Employment Contract does not apply.

Decision: VDS Decision Pdp 656/2010

Decision of the Higher Court in Ljubljana: VSL Decision I Cp 1689/2010

Given the fact that the parties have concluded a contract agreeing that the decision on the dispute in question shall fall within the competence of the arbitration indicated in the contract, the court of first instance should have declared lack of jurisdiction in response to the (timely) objection of the defendant, repealed the acts performed in the course of the proceedings and dismissed the lawsuit. Failing to do so and instead claiming jurisdiction, the court committed a material violation of the procedural provisions of Article 339, Paragraph 2, Section 5 of the Civil Procedure Act.

Decision:  VSL Decision I Cp 1689/2010

Decision of the Higher Court in Ljubljana: VSL Decision I Cp 4507/2010

The objection to territorial jurisdiction and the objection to the jurisdiction of arbitration shall be allowed only when raised in the objection to the order of execution on the grounds of an authentic act.

Decision: VSL Decision I Cp 4507/2010

Decision of the Higher Court in Ljubljana: VSL Decision I Cp 888/2011

Furthermore, the counterparty’s failure to appoint an arbitrator does not constitute an act for which the counterparty would be required to reimburse the costs incurred by the petitioner on the grounds of wrongful conduct. The counterparty based the explanation for their actions on a disputable clause concerning the settlement of disputes between the litigating parties. The explanation was rejected by the court of first instance. By itself, unfounded resistance on the part of the counterparty does not constitute a wrongful act.

Decision: : VSL Decision I Cp 888/2011

Decision of the Higher Court in Ljubljana: VSL Decision I Cpg 1082/2011

In the clause, the litigating parties failed to clearly and expressly exclude the jurisdiction of the court over the settlement of disputes arising from the contract, as further proceedings before the court are clearly envisaged. Such wording therefore cannot be considered an agreement between the parties to resolve a dispute by arbitration only.

Decision:  VSL Decision I Cpg 1082/2011

Decision of the Higher Court in Ljubljana: VSL Decision I Cpg 218/2012

The agreement between the parties must provide for the nature of the award of the board of arbitration, otherwise it cannot be considered an arbitration agreement. Given the fact that the will of the parties to exclude the jurisdiction of the court over the settlement of their disputes is an essential element of an arbitration agreement, the opinion of the court of first instance that the agreement between the parties does not convey the essence of arbitration as it provides for the disputes “arising from this Contract” to be referred to the court is correct.

Decision:  VSL Decision I Cpg 218/2012

SUPREME COURT OF THE REPUBLIC OF SLOVENIA

Decision of the Supreme Court of the Republic of Slovenia: Decision Cpg 2/2009

The existence of an arbitration agreement is one of the requirements, the lack of which can result in a rejection of a request for enforcement. This impediment is not specifically indicated in Article V, Paragraph 1 of the NYC. However, it can be inferred a minori ad maius from Article II, Paragraph IV, Section (b) and Article V, Paragraph 1, Section (a) of the NYC directly referring to Article II. Under the NYC, the lack of an arbitration agreement is not established ex officio in the course of the enforcement of an arbitral award, although the petitioner must (among other documents) enclose the original arbitration agreement referred to in Article II of the NYC (Article IV, Paragraph 1, Section (b) of the NYC) to the request for enforcement. The requirement of the existence of a written arbitration agreement is substantially regulated by the NYC and domestic law. The existence of an arbitration agreement must be established in the course of the enforcement of the arbitral award in two stages: under the law referred to in Article V, Paragraph 1, Section (a) of the NYC and under the provisions of domestic law (or Article II of the NYC). The petitioner has explicitly denied the existence of an arbitration agreement in the course of proceedings before the court in the Republic of Croatia. This statement, to which the respondent had referred, had to be taken into account by the court of first instance under the interpretation rule referred to in Article 99, Paragraph 2 of the Obligations Act (identical in substance to Article 82, Paragraph 2 of the Code of Obligations), which provides that the common purpose of the contracting parties must be established in interpreting a disputable clause.

Decision: VSRS Decision Cpg 2/2009

Decision of the Supreme Court of the Republic of Slovenia: Decision Cpg 2/2012

Based on the right to an adversary procedure, the parties must be allowed to respond to all of the pleadings that are part of the case record and that can affect the court’s decision. They must be given the opportunity to respond to both matters of fact and matters of law. The right to an adversary procedure also includes the proper delivery of pleadings to the parties so that they may respond to them.

Decision: VSRS Decision Cpg 2/2012

Decision of the Supreme Court of the Republic of Slovenia: Decision Cpg 1/2014

The Rules according to which the arbitral tribunal proceeded, do not state that the British Coffee Association should be obliged to inform the party about the possibility of designating an arbitrator. In accordance with the point (i) of paragraph (b) of Article 17 of the Rules, the requesting party informed the counterparty about the designation of an arbitrator. The counterparty was duly informed about the designation of an arbitrator and arbitration proceedings, so the reason for the refusal of the recognition of the arbitral award referred to in point (b) of the first paragraph of Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is not given.

Decision: VSRS Decision Cpg 1/2014

Decision of the Supreme Court of the Republic of Slovenia: Decision Cpg 2/2014

Even if the provision of Article 40 of the Commercial Public Services Act would stipulate the exclusive competence of the state court (but it does not) that, after the enactment of the Code of Civil Procedure (ZPP/99), should not prevent settlement of disputes from the concession contracts before the domestic Arbitration. Authentic interpretation of the law is not binding on the courts.

Decision: VSRS Decision Cpg 2/2014

Under the second paragraph of Article 41 of the Arbitration Act, the court may reject the application for a declaration of enforceability of domestic arbitration award only if it is given one of the grounds for revocation under point 2 of the second paragraph of Article 40 of the Arbitration Act. The opposing party did not prove the existence of such grounds.

Decision: VSRS Decision Cp 10/2014