Abstract
Bosnian law is a developing market in regard to the usage of arbitration as a mechanism for safe and quick resolution of disputes. What seems to be an unexplored territory is the possibility to use arbitration, with all of its benefits, in order to facilitate in the most effective way the resolution of intra-company shareholder disputes. Case law discussing such possibility is still underdeveloped and remains to be seen in the future. Having this in mind, this article reviews legal boundaries, if any, to negotiate and then use arbitration as a dispute resolution mechanism. Texts will show that authors’ positions in regard to the Bosnian approach are highly arbitration friendly, owing to all positive aspects of arbitration against the negatives of usual court procedure.
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Notes
- 1.
Official Gazette FBiH No. 81/2015.
- 2.
Bikić and Gagula (2019), p. 164.
- 3.
Article 338 of the Law on Companies of FIBH.
- 4.
Article 303 of the Law on Companies of FIBH.
- 5.
Art. 335 of the Law on Companies of FBIH.
- 6.
Art. 293-296 of the Law on Companies of RS.
- 7.
Trifković and Omanović (2001), p. 509.
- 8.
Stanivuković (2014), p. 29.
- 9.
O’Malley (2009), par. 1.16 “Thus, arbitral tribunals today may look to such principles for guidance as to what is considered a fair and equitable manner of administering an evidentiary procedure in international arbitration. These and principles like them are the generally recognized “rules of evidence”, but seen in the context of due process, they are simply guidelines for what is considered to be fair. That being said, because of the necessity for flexibility in international arbitration, their application by an arbitral tribunal may be amended in some instances and set aside in favor of other approaches, depending on what the needs of the case are.”
- 10.
Fry et al. (2012), pp. 156–158. The ICC takes into account different factors for appointment of the arbitrators including, but not limited to: nationality, residence, other relations with the countries involved, availability, ability, expertise, experience, qualification, knowledge of international arbitration, legal qualifications, language skill.
- 11.
Not only shareholders disputes. Construction disputes are of a kind where expertise of the arbitrators if advantage of the arbitration before the civil courts. Brekoulakis and Thomas (2017), pp. 1–2.
- 12.
Croft et al. (2013), p. 193.
- 13.
UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (2012), p. 170.
- 14.
Julian et al. (1987), p. 10.
- 15.
Official Gazette of FBIH No. 53/03, 73/05, 19/06, 98/15.
- 16.
Official Gazette of RS No. 58/03, 85/03, 74/05, 63/07, 61/13.
- 17.
Art. 42 CPC.
- 18.
Art. 42 CPC.
- 19.
Art. 45 CPC.
- 20.
Art. 338 Law on Companies of FBIH.
- 21.
Art. 293-296 Law on Companies of RS.
- 22.
Uzelac (2002), p. 6.
- 23.
Art. 363(1) Law on Companies of Croatia: “Claim can be initiated exclusively before the court referred to in Art. 40(1) of this law”. Art. 40(1) of Law on Companies of Croatia determines, among other, that commercial court with seat in the seat of the company shall be competent for resolution of the disputes between shareholders and between shareholders and the company.
- 24.
Perović (1980), p. 36.
- 25.
Art. 52 of the CPC.
- 26.
Look for the similar problem in the USA: Lipton (2016).
- 27.
Art. 435(1) of the CPC.
- 28.
District Court of Sarajevo, 04.10.2017, 65 0 Ps 460889 15 Pž.
- 29.
Barbić (2013), p. 499.
- 30.
Art. 369 of the CPC.
- 31.
Art. 371a of the CPC.
- 32.
Art. 297 of the Law on Companies RS.
- 33.
Art. 17.5 of the UNCITRAL Rules 2013: “The arbitral tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitration as a party provided such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. The arbitral tribunal may make a single award or several awards in respect of all parties so involved in the arbitration.”
- 34.
Art. 7.1 of the ICC Rules 2017: “A party wishing to join an additional party to the arbitration shall submit its request for arbitration against the additional party (the “Request for Joinder”) to the Secretariat. The date on which the Request for Joinder is received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of arbitration against the additional party. Any such joinder shall be subject to the provisions of Articles 6(3)–6(7) and 9. No additional party may be joined after the confirmation or appointment of any arbitrator, unless all parties, including the additional party, otherwise agree. The Secretariat may fix a time limit for the submission of a Request for Joinder.”
- 35.
Art. 12 of the Ljubljana Rules.
- 36.
Art. 38 of the Zagreb Rules.
- 37.
Art. 14.1. of the Vienna Rules 2018: “The joinder of a third party in an arbitration, as well as the manner of such joinder, shall be decided by the arbitral tribunal upon the request of a party or a third party after hearing all parties and the third party to be joined as well as after considering all relevant circumstances.”
- 38.
Art. 297 of the Law on Companies RS.
- 39.
Art. 10 of the ICC Rules 2017: “The Court may, at the request of a party, consolidate two or more arbitrations pending under the Rules into a single arbitration, where: … b) all of the claims in the arbitrations are made under the same arbitration agreement…”
- 40.
Art. 11.1 of the Ljubljana Rules.
- 41.
Art. 36 of the Zagreb Rules.
- 42.
Art. 15.1 of the Vienna Rules 2018: “Upon a party’s request, two or more arbitral proceedings may be consolidated if 1.1 the parties agree to the consolidation; or 1.2 the same arbitrator(s) was/were nominated or appointed; and the place of arbitration in all of the arbitration agreements on which the claims are based is the same.”
- 43.
Weitzel (2013), p. 118.
- 44.
Lee (2015).
- 45.
Strembelev and Kryvoi (2014), pp. 108–118.
- 46.
L Capital Jones Ltd v Maniach Pte Ltd [2017] SGCA 3.
- 47.
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).
- 48.
Hartlieb (2014), p. 132.
- 49.
AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).
- 50.
Brabant et al. (2015).
- 51.
Hertel and Covi (2018).
- 52.
BGH, 6 April 2009, no. II ZR 255/08.
- 53.
Markert (2015), pp. 29–60.
- 54.
BGH, 6 April 2017, no. I ZB 23/16.
- 55.
Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855 (21 July 2011).
References
Barbić J (2013) Tužba za pobijanje odluke glavne skupštine dioničkog društva – neka odabrana pitanja. Zbornik Pravnog fakulteta u Zagrebu 63(3–4)
Bikić E, Gagula A (2019) Pravo privrednih društava
Brabant TA, Desplats M, Salem S (2015) Arbitration and company law in France. Eur Company Law 12(3)
Brekoulakis S, Thomas DB (2017) The guide to construction arbitration
Croft C, Kee C, Waincymer J (2013) A guide to the UNCITRAL arbitration rules
Fry J, Greenberg S, Mazza F (2012) The secretariat’s guide to ICC arbitration
Hartlieb GD (2014) Enforceability of mandatory arbitration clauses for shareholder-corporation disputes. Mich Bus Entrep Law Rev 4(1)
Hertel T, Covi A (2018) ‘Arbitrability of Shareholder Disputes in Germany’, Kluwer Arbitration Blog
Julian L et al (1987) Contemporary problems in international arbitration
Lee J (2015) Intra-corporate dispute arbitration and minority shareholder protection: a corporate governance perspective. Available at SSRN: https://ssrn.com/abstract=2736981
Lipton A (2016) Manufactured consent: the problem of arbitration clauses in corporate charters and bylaws. Georgetown Law J 104:583
Markert LA (2015) Arbitrating corporate disputes – German approaches and international solutions to reconcile conflicting principles. Contemp Asia Arbitr J 8(1):29–60. Available at SSRN: https://ssrn.com/abstract=2612404
O’Malley N (2009) Rules of evidence in international arbitration: an annotated guide
Perović S (1980) Komentar Zakona o obligacionim odnosima
Stanivuković M (2014) Međunarodna arbitraža
Strembelev SV, Kryvoi Y (2014) Arbitrability of corporate disputes in Russia: to be or not to be. CIS Arbitration Forum Working Paper 1/2014; Journal “Zakon”, April 2013, No. 4, pp 108–118. Available at SSRN: https://ssrn.com/abstract=2383736 or https://doi.org/10.2139/ssrn.2383736
Trifković M, Omanović S (2001) Međunarodno poslovno pravo i arbitraže. Sarajevo
UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (2012)
Uzelac A (2002) Nove granice arbitrabilnosti prema Zakonu o arbitraži. Pravo u gospodarstvu 41:2
Weitzel P (2013) The end of shareholder litigation? Allowing shareholders to customize enforcement trough arbitration provisions in charters and bylaws. BYU Law Rev (1)
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Gagula, A. (2019). Arbitrability of Shareholder Disputes in Bosnian Law. In: Meškić, Z., Kunda, I., Popović, D., Omerović, E. (eds) Balkan Yearbook of European and International Law 2019. Balkan Yearbook of European and International Law, vol 2019. Springer, Cham. https://doi.org/10.1007/16247_2019_4
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