Skip to main content
SpringerLink
Log in

Interpretation and Application of the New York Convention in Croatia

  • Chapter
  • First Online:
Recognition and Enforcement of Foreign Arbitral Awards

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 23))

  • 1937 Accesses

Abstract

Implementation of the New York Convention in Croatia has benefitted substantially from the creation of an arbitration-friendly legal regime. However, as in many other jurisdictions, the courts in Croatia are tackling several issues left unresolved by the New York Convention. This report examines the legal regime in Croatia and identifies certain unresolved issues currently being considered by the Croatian courts.

Vlatka Butorac Malnar is Assistant Professor at the Department of International and European Private Law at the Faculty of Law, University of Rijeka. She holds an LL.M and a Ph.D. from the Central European University in Budapest, Hungary. She has been a visiting research fellow at Cornell Law School, the Max-Planck Institute for Comparative and International Private Law and Asser College Europe.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 269.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 349.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 499.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    See Official Gazette: Narodne novine 53/91.

  2. 2.

    Since Croatia became a party to the Convention by way of succession, the relevant date for this purpose is February 26, 1982, when the Convention was originally ratified by the SFRY.

  3. 3.

    Art 1(1) of the Croatian Companies Act (published in the Official Gazette: Narodne novine 111/1993, 34/1999, 121/1999, 52/2000, 118/2003, 107/2007, 146/2008, 137/2009, 111/2012, 125/2011, 68/2013).

  4. 4.

    Art 2(1)(8) of the CLA.

  5. 5.

    Art 2(1)(9) of the CLA.

  6. 6.

    An “interim award” should not be confused with an “interim order.” The former refers to an arbitral award that “…[relates only] to substantive decisions regarding the basis of a monetary claim (e.g., a decision on responsibility for damages, whereas the amount of damages would be left for the final award).” See A Uzelac, “National Report for Croatia” in J Paulsson and L Bosman (eds), ICCA International Handbook on Commercial Arbitration (Kluwer Law International, Supplement No. 57, 2009) 35.

  7. 7.

    S Triva and A Uzelac, Hrvatsko arbitražno pravo (Zagreb, Narodne novine, 2007) 247.

  8. 8.

    This definition is derived by analogy to the definition of a partial judgment in Art 329(1) of the Civil Procedure Act.

  9. 9.

    Art 30(1) of the CLA explicitly states that a partial award is deemed to be an independent award.

  10. 10.

    This definition is derived by analogy to the definition of an interim judgment in Art 330(1) of the Civil Procedure Act.

  11. 11.

    Art 30 of the CLA.

  12. 12.

    Art 30(1) of the CLA states that only partial awards are considered to be independent awards.

  13. 13.

    Art 38 of the CLA.

  14. 14.

    Parties are free to pursue a domestic arbitration in relation to both “disputes without an international element” (i.e., disputes in which the parties are natural persons with their domicile or habitual residence in Croatia or legal persons established under the law of the Republic of Croatia) and “disputes with an international element” (i.e., disputes in which at least one party is a natural person with a domicile or habitual residence abroad, or a legal person established under foreign law).

  15. 15.

    Art 2(1)(2) of the CLA.

  16. 16.

    See above n 7 at 341.

  17. 17.

    See above n 7 at 248.

  18. 18.

    See above n 7 at 247.

  19. 19.

    Art 16 of the CLA.

  20. 20.

    E Kunštek, “Priznanje i ovrha privremenih mjera donesenih u arbitražnom postupku” (2011) 4 Pravo u gospodarstvu 865, 865-873.

  21. 21.

    See Art 19(1) of the Enforcement Act.

  22. 22.

    See Art 24(1) of the Enforcement Act.

  23. 23.

    The provisions on the recognition and enforcement of foreign arbitral awards (Arts 97-100) were repealed in 2001 by Art 50 of the CLA.

  24. 24.

    Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 351 (20.12.2012) 1–32.

  25. 25.

    Art 1(2) of the Bruxelles I bis Regulation states: “This regulation shall not apply to […] arbitration […]” For more commentary, see PA Nielsen, “Current Developments: The Recast Brussels I Regulation” (2014) 83 Nordic Journal of International Law 61-71; U Magnus and P Mankowski (eds), European Commentaries on Private International Law (Sellier, 2007) 62.

  26. 26.

    See above n 7 at 125–126.

  27. 27.

    See above n 7 at 126.

  28. 28.

    See Art VII(2) of the Convention.

  29. 29.

    See Art IX of the European Convention on International Commercial Arbitration (1961).

  30. 30.

    See Art 40 in conjunction with Art 36(2)(f) of the CLA.

  31. 31.

    This distinction is in sharp contrast to another distinction between the CLA and the Convention. Under the CLA, the Croatian courts can only consider a violation of the rules on the composition of an arbitral authority or the arbitral procedure as a ground for refusal of recognition and enforcement if such violation affects the outcome of the case in question. This wording narrows down substantially the possibility for refusal of recognition and enforcement of a foreign arbitral award when compared the Art V(1)(d) of the Convention. Thus, from this perspective, the CLA is clearly a “more favorable” law.

  32. 32.

    A study from 2004 suggests that somewhere between 168,579 and 197,148 cases are filed every year before the commercial courts, and only few of them relate to arbitration agreements in some manner. See “50 godina trgovačkih sudova u republici hrvatskoj, zagreb, 2004” in V Lovrić, “Ugovor o arbitraži u praksi trgovačkih sudova” (2005) 2 pravo u gospodarstvu 53. Although this data is rather old, to the best of my knowledge, not much has changed over the years.

  33. 33.

    ibid. The rare cases where arbitration agreements were found to be invalid were decided on the ground of non-arbitrability (discussed below). An interesting series of cases where arbitration agreements were declared invalid involved arbitration agreements concluded prior to the independence of Croatia which called for the jurisdiction of the Foreign Trade Court of Arbitration of the Yugoslav Chamber of Economy in Belgrade. These cases were very specific cases connected with the dissolution of Yugoslavia and the entry into force of the Decision of the Croatian Parliament of 8 October 1991 on the termination of all state connections with other republics of the former SFRY. See, eg High Commercial Court Pž-957/92 of April 29, 1992; Supreme Court Gž 5/04-2 of February 27, 2006; Supreme Court Revt-114/02-2 of May 7, 2002.

  34. 34.

    Art 42(1) of the CLA.

  35. 35.

    See, eg High Commercial Court Pž-6756/04-3 of April 17, 2007; High Commercial Court Pž-7481/03 of April 27, 2004.

  36. 36.

    Art 6 (7) of the CLA.

  37. 37.

    Issues of substantive validity are governed by the Croatian Law on Obligations.

  38. 38.

    H Sikirić, “The arbitration agreement” (2002) 9 Croatian Arbitration Yearbook 161, 183.

  39. 39.

    See above n 7 at 67. There is, however, one limitation. Where the parties make a choice of law for the validity of the arbitration agreement, and where according to this law the arbitration agreement is not valid, it will not be possible to look into any other available law.

  40. 40.

    See above n 38 at 185.

  41. 41.

    A Uzelac “Forma arbitražnog ugovora u hrvatskom pravu: novo uređenje, njegova ishodišta i perspektive daljnjeg razvoja” (2006) 56 Zbornik Pravnog fakulteta u Zagrebu, 549–582.

  42. 42.

    The Permanent Arbitration Court has determined that the following arbitration clauses form a valid basis for the establishment of its jurisdiction: “arbitration in Zagreb” (IS-P-12/93 of April 13, 1994); “arbitral tribunal of the Chamber of Economy in Zagreb” (IS-P-25/99 of October 18, 2001); “Arbitration Committee of the Chamber of Economy of Croatia” (IS-P-25/97 of July 6, 1990); “Arbitration court of the competent chamber of Economy” (IS-P-2000/17 of H July 17, 2001); “international arbitration court of the respondent’s country” (IS-P-2002/02 of May 20, 2003); “Competent Arbitration in Zagreb/Rijeka” (IS-P-16798 of September 27, 1999); “foreign trade arbitration in Zagreb” (IS-P-15/96 of September 15, 1997); and “Foreign Trade arbitration at the Chamber of Economy in the Republic of Croatia” (IS-P-2003/27 of February 20, 2004.) For more details, see H Sikirić, “Arbitration agreements in PAC-CCE Practice” (2005) 12 Croatian Arbitration Yearbook 45.

  43. 43.

    The judgment of the Croatian Constitutional Court is available in English at sljeme.usud.hr/usud/prakswen.nsf/Praksa/31D0A3B4D40307A1C1257D1D003DB973?OpenDocument.

  44. 44.

    As a preliminary issue, the Croatian Constitutional Court had to decide on the admissibility of the complaint. This decision has been omitted from this summary as it does not pertain to the issue discussed.

  45. 45.

    See U-III/669/2003 point 9. However, two dissenting opinions were also published holding that the constitutional rights of the applicant were not violated.

  46. 46.

    See U-III/669/2003 point 10.

  47. 47.

    See above n 41.

  48. 48.

    Art 29(1) of the Croatian Constitution provides a right to an independent and fair trial provided by law, which shall within a reasonable time decide upon rights and obligations.

  49. 49.

    See U-III/669/2003 point 12.

  50. 50.

    See above n 7 at 290.

  51. 51.

    See above n 7 at 292.

  52. 52.

    See above n 7 at 292.

  53. 53.

    See, eg High Commercial Court Pž-5663/07-5 of May 16, 2008; High Commercial Court Pž-966/12-3 of February 24, 2012.

  54. 54.

    See U-III/2746/2011 of May 23, 2013.

  55. 55.

    See U-III/453/2011 of June 14, 2011; ECHR, Perić v. Croatia of March 27, 2008 (Application No. 34499/06).

  56. 56.

    See above n 7 at 295.

  57. 57.

    See above n 7 at 295.

  58. 58.

    See above n 7 at 344.

  59. 59.

    The decision of the Commercial Court was based on Art 56 of the Croatian Conflict of Law Act, which provides for exclusive international jurisdiction of the Croatian courts, inter alia, over disputes arising out of lease relations pertaining to real estate located in Croatia.

  60. 60.

    A Uzelac, “Arbitrabilnost - aktualno uređenje i neka otvorena pitanja u hrvatskom pravu” (2010) 4 Pravo u gospodarstvu 1025.

  61. 61.

    A Uzelac, “National Reports – Croatia” in L Mistelis and L Shore (eds), World Arbitration Reporter, 2nd edn (Juris, 2010) 19-20.

  62. 62.

    See, eg Gž 14/98-4 of October 15, 2008; Revt 74/2007-2 of October 7, 2009; Gž 2/2008-2 of May 30, 2008.

  63. 63.

    Eco Swiss China Time Ltd v Benetton International NV (Case C-126/97) ECR [1999] I-03055.

  64. 64.

    ibid at para 38 (Opinion of Advocate General Saggio delivered on February 25, 1999).

  65. 65.

    For a detailed analysis, see N Gumzej, “Certain aspects of public policy” (2003) 10 Croatian Arbitration Yearbook 39-98.

  66. 66.

    H Sikirić, “Javni poredak kao razlog za poništaj pravorijeka” (2009) 59 Zbornik Pravnog fakulteta u Zagrebu 225, 266.

  67. 67.

    See Art 47 of the CLA.

References

  • S Triva and A Uzelac, Hrvatsko arbitražno pravo (Zagreb, Narodne novine, 2007).

    Google Scholar 

  • A Uzelac, “Croatia” in J Paulsson (ed) International Handbook on Commercial Arbitration (Kluwer Law International, Supplement No 81, 2014).

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Pravni fakultet, Sveučilišta u Rijeci, Hahlić 6, 51000, Rijeka, Croatia

    Vlatka Butorac Malnar

Authors
  1. Vlatka Butorac Malnar
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Vlatka Butorac Malnar .

Editor information

Editors and Affiliations

  1. Columbia Law School, New York, New York, USA

    George A. Bermann

Rights and permissions

Reprints and permissions

Copyright information

© 2017 Springer International Publishing AG

About this chapter

Cite this chapter

Malnar, V.B. (2017). Interpretation and Application of the New York Convention in Croatia. In: Bermann, G. (eds) Recognition and Enforcement of Foreign Arbitral Awards. Ius Comparatum - Global Studies in Comparative Law, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-50915-0_9

Download citation

  • DOI: https://doi.org/10.1007/978-3-319-50915-0_9

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-319-50913-6

  • Online ISBN: 978-3-319-50915-0

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation