Dispute Resolution - Selih.si Slovenia.pdf · Dispute Resolution in 45 jurisdictions ... Law...

Dispute Resolutionin 45 jurisdictions worldwideContributing editor: Simon Bushell 2013

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Published by Getting the Deal Through

in association with:

Achour & HájekAnderson Mori & Tomotsune

Andreas Neocleous & Co LLCAramis

Batliner GasserBharucha & Partners

BiedeckiBraddell Brothers LLP

Cárdenas & Cárdenas AbogadosCariola Díez Pérez-Cotapos

Charles Adams Ritchie & DuckworthDillon Eustace

ELIG Attorneys-at-LawEnGarde Attorneys at Law

Fulbright & Jaworski LLP (Norton Rose Fulbright)Gan Partnership

Gilbert + TobinGSK Stockmann + Kollegen

Hoet Peláez Castillo & DuqueIvanyan & PartnersJun He Law Offices

Kleyr Grasso AssociésLatham & Watkins

Liedekerke Wolters Waelbroek KirkpatrickLund Elmer Sandager

MacRoberts LLPMiller, Canfield, Paddock and Stone PLC

Moravcevic Vojnovic i Partneri in cooperation with SchönherrMotieka & Audzevicius

MS ConsultoresMunari Cavani

Nagy és Trócsányi Ügyvédi IrodaNiedermann Rechtsanwälte

Odvetniki Šelih & partnerji, o.p., d.o.o.Polenak Law Firm

Richards, Layton & Finger PASchulte Roth & Zabel LLP

Sofunde, Osakwe, Ogundipe & BelgoreSpecht Böhm

Tilleke & GibbinsTroy Gould PC

Werksmans AttorneysWoods LLP

Zamfirescu Racoti & Partners Attorneys at Law

Dispute Resolution 2013

Contributing editor Simon Bushell Latham & Watkins

Business development managers Alan Lee George Ingledew Dan White

Marketing managers Rachel Nurse Zosia DemkowiczMarketing assistants Megan Friedman Cady Atkinson Robin Synnot Joseph Rush

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Chief subeditor Jonathan AllenSubeditor Harry Phillips Editor-in-chief Callum CampbellPublisher Richard Davey

Dispute Resolution 2013 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910

© Law Business Research Ltd 2013 No photocopying: copyright licences do not apply. First published 2003 Eleventh edition 2013 ISSN 1741-0630

The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of June 2013, be advised that this is a developing area.

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ContEntS

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LawBusinessResearch

Introduction Simon Bushell Latham & Watkins 4

Australia Steven Glass and Airlie Goodman Gilbert + Tobin 5

Austria Erhard Böhm and Paul Proksch Specht Böhm 12

Belgium Joe Sepulchre, Hakim Boularbah and Charlotte Marquet

Liedekerke Wolters Waelbroek Kirkpatrick 19

Canada, Quebec James A Woods, Christopher L Richter and Marie-Louise Delisle Woods LLP 30

Cayman Islands Graham F Ritchie QC and David W Collier Charles Adams Ritchie & Duckworth 35

Chile Florencio Bernales and Raimundo Moreno Cariola Díez Pérez-Cotapos 41

China Christine Kang, Weining Zou and Mark H Chu Jun He Law Offices 46

Colombia Alberto Zuleta-Londoño and Silvia Patiño-Rodríguez Cárdenas & Cárdenas Abogados 53

Cyprus Panayiotis Neocleous and Costas Stamatiou Andreas Neocleous & Co LLC 57

Czech Republic Daniel Hájek and David Liskutin Achour & Hájek 63

Denmark Morten Schwartz Nielsen and David Frølich Lund Elmer Sandager 70

Dominican Republic Enmanuel Montás and Yanna Montás MS Consultores 77

England & Wales Simon Bushell Latham & Watkins 82

France Aurélien Condomines, Benjamin May and Nicolas Morelli Aramis 89

Germany Karl von Hase GSK Stockmann + Kollegen 94

Hungary Zoltán Csehi Nagy és Trócsányi Ügyvédi Iroda 101

India Vivek Vashi and Kanika Sharma Bharucha & Partners 108

Ireland John O’Riordan and Sarah Berkery Dillon Eustace 116

Italy Raffaele Cavani, Bruna Alessandra Fossati and Paolo Preda Munari Cavani 122

Japan Tetsuro Motoyoshi and Akira Tanaka Anderson Mori & Tomotsune 129

Liechtenstein Johannes Gasser and Benedikt König Batliner Gasser 135

Lithuania Ramunas Audzevicius, Rimantas Daujotas and Justinas Jarusevicius

Motieka & Audzevicius 141

Luxembourg Marc Kleyr Kleyr Grasso Associés 148

Macedonia Tatjana Popovski Buloski and Aleksandar Dimic Polenak Law Firm 155

Malaysia Foo Joon Liang Gan Partnership 161

nigeria Babajide O Ogundipe and Lateef O Akangbe Sofunde, Osakwe, Ogundipe & Belgore 169

Poland Anna Herman Biedecki 174

Romania Cosmin Vasile Zamfirescu Racoti & Partners Attorneys at Law 181

Russia Sergey Chuprygin Ivanyan & Partners 186

Scotland Julie Hamilton and Susan Hill MacRoberts LLP 195

Serbia Matija Vojnovic and Nataša Lalatovic

Moravcevic Vojnovic i Partneri in cooperation with Schönherr 201

Singapore Edmund J Kronenburg and Tan Kok Peng Braddell Brothers LLP 207

Slovenia Gregor Simoniti and Luka Grasselli Odvetniki Šelih & partnerji, o.p., d.o.o. 214

South Africa Des Williams Werksmans Attorneys 223

Switzerland Marco Niedermann, Robin Grand, Nicolas Herzog and Niccolò Gozzi

Niedermann Rechtsanwälte 229

ContEntS

2 Getting the Deal through – Dispute Resolution 2013

thailand Thawat Damsa-ard and Noppramart Thammateeradaycho Tilleke & Gibbins 236

turkey Gönenç Gürkaynak and Aysın Obruk ELIG Attorneys-at-Law 242

Ukraine Irina Nazarova and Andriy Vyshnevsky EnGarde Attorneys at Law 249

United States Federal Law Robert M Abrahams, Robert J Ward and Caitlyn Slovacek

Schulte Roth & Zabel LLP 256

United States – California Peter S Selvin Troy Gould PC 262

United States – Delaware Samuel A Nolen and Robert W Whetzel Richards, Layton & Finger PA 268

United States – Michigan Frederick A Acomb and Mary K Griffith Miller, Canfield, Paddock and Stone PLC 274

United States – new York Robert M Abrahams, Robert J Ward and Caitlyn Slovacek

Schulte Roth & Zabel LLP 280

United States – texas William D Wood, Kevin O’Gorman and Matthew A Dekovich Fulbright & Jaworski LLP (Norton Rose Fulbright) 286

Venezuela Carlos Dominguez Hoet Peláez Castillo & Duque 294

Slovenia odvetniki Šelih & partnerji, o.p., d.o.o.

214 Getting the Deal Through – Dispute Resolution 2013

SloveniaGregor Simoniti and Luka Grasselli

Odvetniki Šelih & partnerji, o.p., d.o.o.

Litigation

1 Court systemWhat is the structure of the civil court system?

In Slovenia, the judicial system is composed of approximately 1,000 judges deciding civil and criminal matters in three instances. (On 30 September 2012, the number of judges was 1,001.) The civil court system of Slovenia is based on a three-instance judicial structure. In civil proceedings, 44 local courts with 468 judges and 11 district courts with 265 judges act as first-instance courts, depending on the value of the matter in dispute and the subject of the litigation.

Generally, if this value does not exceed €20,000, a local court will have jurisdiction for the litigation. However, local courts have exclusive jurisdiction, regardless of the value of the matter, to decide matters involving trespass to property, easements, property encum-brance and disputes arising from lease or tenancy relations. In all other cases, and especially in cases of parentage, alimony and matri-monial issues or disputes arising from commercial law, bankruptcy law, copyright law, law of industrial property and law of unfair com-petition, the matter will have to be brought before a district court.

Appeals against judgments of local and district courts are decided by four higher courts, with 143 judges, which act as second-instance courts. In the third instance, the Slovenian Supreme Court with 35 judges has jurisdiction to decide appeals brought against second-instance judgments delivered by higher courts and also to decide about revisions and requests for protection of legality. The parties may lodge a revision against a final judgment of a second-instance court within 30 days from the day of service of the judgment. In disputes involving pecuniary claims the revision will be admissible if the amount in dispute exceeds €40,000 and in commercial litiga-tions it will be admissible if the amount in dispute exceeds €200,000. If the amount in dispute does not exceed the mentioned amounts, the parties may lodge a proposal to the Supreme Court within 30 days of the day of service of the judgment to decide that the revision is permissible.

In such cases, the Supreme Court will declare the revision per-missible only if the expected decision is on a legal question that is significant for ensuring the legal protection of citizens, uniform application of the law or development of the law through case law. The Supreme Court declares revisions permissible especially in cases of:• legalquestionsuponwhichtherespectivehighercourtdecision

deviates from past Supreme Court case law; • legalquestionsuponwhichthereisnoSupremeCourtcaselaw,

especially if the respective higher court case law is not uniform; and

• legalquestionsuponwhichthecaselawoftheSupremeCourtis not uniform (article 367a ZPP (the Slovenian Civil Procedure Act)).

In deciding appeals and revisions, the Supreme Court is generally not allowed to review the facts of the case. In line with this principle, new facts and evidence may only be submitted by the parties in nar-rowly defined circumstances.

In addition to the general court system, specialised courts rule on specific subject matters. The Administrative Court of Slovenia will decide administrative law disputes and certain other matters of administrative nature. The first-instance Labour and Social Courts and the second-instance Higher Labour and Social Court of Slovenia will decide labour, employment and social law disputes.

In the Slovenian court system, the Constitutional Court of Slovenia is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms. Most of its powers are explicitly determined in the Constitution. This is an independent and autonomous state body exercising constitutional review as detailed by the Constitutional Court Act.

2 Judges and juriesWhat is the role of the judge and the jury in civil proceedings?

Slovenian judges are career judges elected by the Slovenian parlia-ment upon proposal of the Judicial Council (a body composed of 11 members elected among university professors of law, attorneys, other lawyers and judges holding permanent judicial office).

The role of a Slovenian judge may be described as a passive one. To establish facts that appear relevant to the evaluation of the dis-pute, the presiding judge may ask questions, and in an appropriate manner see that all relevant facts will be stated during the hearing, that incomplete statements concerning important facts will be sup-plemented, that means of evidence relating to the parties’ statements will be adduced or supplemented and that all necessary explana-tions will be given to establish the facts and legal relation in dispute (article 285 ZPP). However, in civil proceedings, a judge may decide only within the limits and extent of claims as defined by parties to the litigation (article 2 ZPP).

Judges also may not appoint experts, order witnesses to appear in court or parties to submit certain documents at their own discre-tion if that is not in accordance with the submissions of parties in the dispute. Only the parties are entitled to state all the facts and to adduce evidence proving these facts to support their claims. The pre-siding judge may only decide to establish facts that the parties have not stated and produce evidence that the parties have not adduced when the course of hearing and production of evidence shows that the parties intend to perform acts that are against the law or moral-ity (paragraph 3 of article 3 ZPP). In such cases the court may only found its judgment upon the facts on which the parties have been given the opportunity to be heard (article 7 ZPP).

Proceedings in disputes under the jurisdiction of first-instance courts will be conducted by a single (career) judge. Juries as such do not exist in the Slovenian legal system.

Odvetniki Šelih & partnerji, o.p., d.o.o. SlOvenia

www.gettingthedealthrough.com 215

3 Limitation issuesWhat are the time limits for bringing civil claims?

As a general rule, claims are not enforceable once they become statute-barred. The statute of limitations will generally commence when a right could have been first exercised (articles 335 and 336 OZ (the Code of Obligations)). Slovenian law distinguishes between four main limitation periods. The general limitation period is five years and applies whenever special provisions do not provide other-wise (article 346 OZ). The longest limitation period is, as a rule, 10 years and applies to claims deriving from a final judgment or a court settlement. A three-year limitation period applies to periodic claims, to claims deriving from commercial contracts and to damage claims. The shortest of limitation period is one year, which applies to certain enumerated, mostly consumer-related claims, such as those relating to postal, heating, television and telephone services. The statute of limitations is not observed ex officio, but must be pleaded. It can-not be waived in advance. Agreements ruling out or prolonging the statute of limitations stated by the law are null and void.

4 Pre-action behaviourAre there any pre-action considerations the parties should take into

account?

Generally, there are no legal requirements to be met. However, from a practical point of view, the period before filing a lawsuit may often prove to be a very important time during a dispute. It is actually the point when parties, together with their attorneys, should carefully summarise all the facts of a case and find out whether all the evi-dence necessary to prove these facts is at hand. Since the Slovenian civil procedure law generally does not provide for discovery and therefore there is no obligatory step for the parties to be followed before bringing an action, it will be up to the parties to evaluate whether they will be able to prove all the facts relevant for their case.

5 Starting proceedingsHow are civil proceedings commenced?

Civil proceedings are commenced by filing a complaint. The com-plaint must satisfy certain formal requirements and may be filed by the party itself or by its proxy.

In proceedings before a local court, any person having full con-tractual capacity may act as a proxy. In proceedings conducted by district and higher courts and by the Supreme Court, only attor-neys or other persons who have passed the bar exam may act as a proxy. A law firm may also be empowered for representation in court proceedings. A Slovenian attorney can act as a proxy before any Slovenian court since the Slovenian civil system does not state any territorial limitations for the practice of attorneys. Upon perfor-mance of the first act of procedure on behalf of the party, the attor-ney shall submit to the court the power of attorney (article 98 ZPP).

Complaints must be in writing and must contain names and addresses of parties, allegations as to the jurisdiction of the court, relief sought, facts on which the claim is based, and evidence for these facts. If applications for safeguarding of evidence, summoning of witnesses and interim measures are to be filed, it is recommended that they also be included in the complaint. The case is considered pending when the competent court receives the complaint and any applicable limitation period (see question 3) is interrupted, provided that the proceedings are duly pursued.

6 TimetableWhat is the typical procedure and timetable for a civil claim?

After the claim has been filed, the court will first consider whether the complaint is formally correct. The court must assess if the com-plaint is intelligible and complete, if the court fee is paid, if the

court has jurisdiction, etc. If all procedural conditions are fulfilled, the court will serve the complaint on the defendant along with a request to submit a statement of defence within 30 days of receiving the complaint. The statement of defence must be submitted in the form of a legal brief, explaining the facts and evidence on which the defendant is relying. In addition, the defendant must indicate the judgment he or she is seeking (dismissal of the complaint in whole or in part). Having received the statement of defence, the court initi-ates the trial, which usually consists of several oral hearings. Judges are obliged to attempt court settlement at the beginning of the first hearing in any dispute before court procedure is continued (article 305a et seq ZPP). Court settlement is also possible afterwards, at all times during proceedings before the court of first instance. Such set-tlement may involve the whole claim or only a part thereof. During the proceedings, the court will advise the parties of the possibility of settlement, and will help them settle the matter in dispute. However, a court settlement is not permissible in respect of claims of which the parties cannot dispose. Upon the passing of a decree barring the conclusion of a court settlement, the court will stay proceedings until such decree becomes final.

Parties are entitled to file written submissions containing all facts upon which their motions are based, adduce evidence required to establish the truth of their statements and to comment on sub-missions of opposing parties, up to the end of the opening hearing session. After the opening hearing session, parties are only allowed to present new facts and new evidence if they were prevented from doing so at the opening session due to reasons beyond their con-trol. Parties are allowed to submit new facts that have either become known in the course of proceedings or only became relevant owing to the development of the procedure (for example, upon new allega-tions introduced by the opponent, upon presentation of an expert’s opinion or as a consequence of perjury of parties and witnesses).

Evidence is taken at oral hearings. Once the taking of evidence is completed, the judge announces that the trial is closed and issues a judgment in writing.

7 Case managementCan the parties control the procedure and the timetable?

The trial is primarily controlled by judges. They open, chair and close the oral hearings, allow participants to speak and may also ask the speaker to fall silent again. They are first to question par-ties, witnesses and expert witnesses. The timetable for proceedings is generally determined by the court, but it is customary for the court and the parties to consensually agree on the dates of hearings. Also, the parties may file motions relating to the procedure (for instance, a motion to postpone a court hearing or instructive time limit). The Slovenian Civil Procedure Act provides a special rule for disputes arising from commercial litigations, which states that in the event of mutual agreement of the parties to adjourn the hearing for an attempt of settlement, the court will allow such adjournment and inform the parties forthwith on the day and hour of the new hearing session. The proceeding shall be stayed if the parties agree so before the trial is completed (article 209 ZPP).

In the case of backlogs, parties are entitled to pursue their rights according to the Act on Protection of the Right to Trial without Undue Delay.

8 Evidence – documentsIs there a duty to preserve documents and other evidence pending

trial? Must parties share relevant documents (including those

unhelpful to their case)?

A party shall submit to the court all relevant documents adduced as evidence to support their statements up to the end of the open-ing hearing session. Documents need to be provided in original for the court, and copies of these documents for the opposing party.



A document drawn in a foreign language shall be provided with a certified translation of the original into Slovenian. If a party submits as evidence large-scale paper documentation, the court may impose the submission of the substantial allegations and information on such documentation. The court will also impose such submission if the submitted documentation is not transparent upon its extent or subject, or it is from the nature of the documentation reasonable to expect that only parts of the submitted information are important for the determination of the alleged facts (paragraph 4 of article 226 ZPP).

There is generally no obligation in the ZPP imposed on either party to provide documents and other evidence unfavourable to it pending trial. If the court suspects or determines that documents and other evidence important for the proceedings were destroyed, it determines by free weighing of evidence how it is going to consider that fact. If a party adduces a document as evidence to support its statements, asserting that such a document is kept with the oppos-ing party, the court shall order the latter to submit such a document within a specified period. A party shall not withhold a document that was adduced as evidence by it, or that is to be submitted or pro-duced under the statute, or whose contents relate to both parties to the litigation. If a party who has been ordered to submit a document asserts that it is not in possession thereof, the court may produce evidence to determine the truth of this assertion. If a party that has the document in its possession does not comply with the decision to submit it or against the court’s belief negates that it possesses it, then the fact that the opposite party wished to prove with that document is considered proven (article 227 ZPP).

If the production of specific pieces of evidence is expected not to be possible, or to be hindered at a later stage, such evidence may be moved to be produced during or before the litigation (paragraph 1 of article 264 ZPP). The motion to secure evidence may be filed even after the decision by which the proceedings are completed has become final, if this is necessary for the extraordinary judicial review of the proceedings (paragraph 2 of article 264 ZPP). The pleading containing a motion to secure evidence shall state the facts to be proven, the evidence to be produced and the reasons for which the production of evidence at a later stage is expected not to be possible or to be hindered (article 266 ZPP).

9 Evidence – privilegeAre any documents privileged? Would advice from an in-house lawyer

(whether local or foreign) also be privileged?

The rights of the parties related to withholding of documents are governed by reference to the rights of the parties not to testify (see question 10). If a party that has been ordered to submit a document in circumstances described in question 8 asserts that they are not in possession of such document, the court may produce evidence to determine the truth of this assertion. If a party in possession of the adduced document does not obey the court’s decision to submit it, or against the court’s determination denies that he or she possesses it, the fact trying to be proven with that document is considered proven (article 227 ZPP).

There are no exceptions from the provisions stated above. Advice from an in-house lawyer would not be privileged, but it is unlikely that it would meet any of the criteria for mandatory pro-duction (having been adduced as evidence by the respective party, to be submitted or produced under the statute, or whose contents relate to both parties to the litigation).

10 Evidence – pretrialDo parties exchange written evidence from witnesses and experts

prior to trial?

Whoever is summoned as a witness in the proceedings shall comply with the summons and shall testify. Only persons capable of giving

data relevant to the facts to be established may be examined as wit-nesses (article 229 ZPP). A party calling a certain person as a wit-ness shall state the facts on which such person should testify, his or her name, address and occupation (article 236 ZPP). A witness may refuse testimony: • onwhatthepartyhasconfessedtohimorherastheirattorney;• onwhatthepartyorotherpersonhasconfessedtohimorheras

their confessor; and • onfactsthatheorshehaslearntasalawyeroradoctororin

pursuance of other activity, if he or she is bound to protect the secrecy of what is learnt in the practice of the legal or medical profession or pursuing such other activity.

The judge shall instruct such witnesses on their right to refuse testi-mony (article 231 ZPP).

Any witness may refuse to answer a particular question for justi-fied reasons, especially if by answering such witnesses may expose themselves, their close relatives (as defined), a present or past spouse, an extramarital partner, a guardian or person under guardianship, or an adopter or adoptee, to a serious disgrace, considerable finan-cial loss or criminal proceedings (article 233 ZPP). The justification of reasons to withhold testimony or answers to particular questions shall be determined by the court before which the witness ought to testify, if necessary, after hearing the parties (article 235 ZPP).

In accordance with article 236a of the ZPP a party may on the invitation of or with the consent of the court submit to the court written and signed statements of proposed witnesses concerning facts on which the witness would testify on the scheduled hearing. The parties may during the proceedings agree upon the exchange of such written statements. The court may also decide to read only writ-ten statements instead of holding the court hearing. However, the court hearing of the witness shall be executed instead if demanded by any party.

In accordance with the ZPP parties are not obliged to exchange written evidence from witnesses and experts prior to the trial, but the parties may during the proceedings agree to exchange written evidence from witnesses (article 236a ZPP). Whenever possible, the court shall serve to the parties expert findings and the opinion in writing before the hearing in which such findings and opinion are to be produced (article 253 ZPP).

11 Evidence – trialHow is evidence presented at trial? Do witnesses and experts give

oral evidence?

If the evidence produced in respect of a particular fact does not induce a sufficient degree of persuasion, the court’s conclusion on such fact shall be drawn pursuant to rules on the burden of proof (article 215).

The opening hearing shall commence by presentation of the complaint and shall be followed by the replication by the defendant. In the further course of the hearing, the court shall hear the parties’ motions and the statements of facts by which they support their own motions, or contest those made by the opposing party, consider the production of evidence adduced by the parties, produce the evidence and consider the results of the production of evidence (article 284 ZPP).

At the opening hearing session, the parties shall be bound to state all facts upon which their motions are based, to adduce evi-dence required to establish the truth of their statements and to pro-duce declarations regarding the statements and evidence adduced by the opposing party. At later hearing sessions, the parties are allowed to present new facts and new evidence only if they were prevented from presenting them by reasons beyond their control at the opening hearing session (article 286 ZPP). The court orders the production of evidence by passing a decree indicating the disputed facts to be proven and the means of evidence by which they are to be proven.



If the court establishes that evidence that a party has adduced is not relevant to the dispute, it shall pass a decree on dismissal thereof and state the grounds for dismissal. No special appeals are allowed against decrees ordering or dismissing the production of evidence (article 287 ZPP). Such decrees may be challenged together with the judgment as issued later.

As a rule, witnesses appear in court and give oral evidence. The court may, however, decide that instead of hearing a witness, only his or her statement is read. The hearing of the witness is mandatory if demanded by one of the parties (paragraph 6 of article 236a ZPP). Concerning the experts, the court shall decide on whether they are to give their findings and their opinion orally at the hearing or in writ-ing prior to the hearing or both (paragraph 1 of article 253 ZPP). If the opinion is given in writing only and clarifications are needed, the parties may demand the hearing of the expert (paragraphs 2 and 3 of article 254 ZPP).

12 Interim remediesWhat interim remedies are available?

If the production of specific pieces of evidence is expected not to be possible, or to be hindered at a later stage, such evidence may be gathered and secured during or before the litigation. The plead-ing containing a motion to secure evidence shall state the facts to be proven, the evidence to be produced and the reasons why the production of evidence at a later stage is expected not to be possible or to be hindered. The pleading shall also contain the particulars of the opponent, unless the circumstances show that the opponent is unknown.

Slovenian civil procedure allows interim injunctions to be issued before, during or after court proceedings until the complete execu-tion of a claim. A general condition that the claimant always has to prove is that his or her claim exists or is likely to come into existence in the future.

To secure money claims, the court may order an interim injunc-tion if the claimant sufficiently proves the danger that the defendant will prevent or hinder the enforcement of the judgment by alien-ating, hiding or otherwise disposing of his or her assets; however, it is deemed that the danger is sufficiently proven should the judg-ment have to be enforced in non-EU countries. Possible preliminary injunctions for securing money claims include freezing orders of bank accounts, attachment of the defendant’s assets, including real estate, seizure of the defendant’s salary up to two-thirds, etc. The court may also order third parties not to pay accounts receivable to the defendant.

To secure non-monetary claims interim injunctions may be issued either under the precondition described under the second option above, or if the claimant proves that:• thereexistsadangerthattheenforcementofthejudgmentwould

be impossible or would be much more difficult to achieve;• theinjunctionisrequiredtopreventunnecessaryuseofforceor

prevent damage to the claimant that would be very difficult to reverse; or

• thedefendantwould,upontheissuingtheinteriminjunction(ifitwould be proven to be unfounded), not suffer more detrimental consequences than the consequences that the claimant would suffer if the interim injunction was not issued.

Possible preliminary injunctions for securing non-monetary claims include prohibition of the alienation or encumbrance of the defend-ant’s assets, including real estate (if the security measures relate to the defendant’s assets connected to the claim), an order to the defendant to desist with actions that could cause damage to the claimant, etc.

The above conditions for the issuance of interim injunctions are interpreted rather strictly by Slovenian courts.

13 RemediesWhat substantive remedies are available?

Under Slovenian law, remedies of the claimant include requests for performance, for obtaining a declaratory decision and for creating, amending or cancelling a legal relationship. Actions for performance may be aimed at holding the defendant liable to pay a certain sum of money, to deliver or surrender moveables or to pay damages. The requested performance may also consist of requiring the defendant to cease and desist (such as acts of unfair competition) or to tolerate certain actions by the claimant. Declaratory judgments decide on the existence of a legal relationship or right or the authenticity of a document. Judgments following actions for creating, amending or cancelling a legal relationship directly change the respective legal cir-cumstances. Punitive damages are not available, with a single excep-tion for copyright infringement.

A debtor that is late in performing a pecuniary obligation shall owe penalty interest in addition to the principal. The interest rate for penalty interest shall amount to 8 per cent per annum, unless stipu-lated otherwise by law (article 378 OZ). At present, the statutory penalty interest rate is determined by the Slovenian Legal Penalty Rate Act in accordance with article 3(d) of EC Directive 2000/35 as the main refinancing rate as used by the ECB plus 8 per cent (cur-rently amounting in aggregate to 9 per cent). However, the creditor and the debtor may agree that the penalty interest rate be lower or higher than the penalty interest rate prescribed by law.

If the agreed interest rate for penalty or contractual interest is more then 50 per cent higher than the prescribed penalty interest rate, such an agreement shall be deemed a usurious contract, unless the creditor shows that he or she has not exploited the debtor’s dis-tress or inexperience, recklessness or dependence. This rule shall not apply to commercial contracts (article 377 OZ).

No penalty interest shall run on interest that has fallen due for payment but has not been paid, unless stipulated otherwise by law. Therefore, a contractual provision that interest shall run on inter-est that has fallen due for payment but has not been paid shall be null and void. As a general rule, interest shall cease to run when the amount of interest that has fallen due for payment but has not been paid reaches the principal.

Penalty interest may only be demanded on unpaid interest from the day of the filing of the complaint (article 381 OZ).

14 EnforcementWhat means of enforcement are available?

If a party does not voluntarily fulfil the judgment, the plaintiff may commence compulsory enforcement in court. Enforcement proceed-ings may refer to moveables and immoveable property, as well as claims against third parties. Therefore, enforcement of monetary claims may include seizure of immoveable property or moveables owned by the defendant, freezing of the defendant’s bank accounts, seizure of the defendant’s shares and seizure of the defendant’s sal-ary up to two-thirds. The enforcement of monetary claims is in many cases effected by attachment and sale of the seized property in an auction. Subsequently, the auction proceeds are assigned to the judgment creditors. Enforcement of non-monetary claims, such as actions or omissions of the defendant, can be effected either by means of third-party performance (if possible), direct force (such as removal of persons, items, sale by auction) or indirectly by imposing fines and imprisonment.

15 Public access Are court hearings held in public? Are court documents available to

the public?

The main hearing shall be held in an open court. The hearing may be attended only by persons of legal age. However, the judge may



exclude the public from all or part of the main hearing, where so required in the interest of official, business or personal secrets, or for moral considerations. The public may also be excluded from the main hearing when by application of measures for maintenance of order the presiding judge cannot secure an undisturbed progress of the proceedings. Exclusion of the public shall not apply to the par-ties, their statutory representatives, attorneys and interveners. If the public is excluded, the presiding judge shall warn those who are allowed to attend the hearing of their secrecy obligations and of the consequences of disclosing secret information. Also, if the public has been excluded from attending the main hearing, the ordering part of the judgment shall always be read out in open court. The court shall decide whether and to what extent the public is to be excluded from hearing the statement of grounds. The presiding judge may also order the hearing to be recorded (either as an audio or video recording).

The parties have the right to inspect and copy the court docu-ments arising from the dispute they partake in. Other persons who prove their standing may also be permitted to inspect and copy individual files. When proceedings are in progress, such permission shall be issued by the presiding judge, whereas after the completion thereof the permission shall be issued by the president or the chief judge of the court (article 150 ZPP).

16 CostsDoes the court have power to order costs?

The costs of proceedings shall include the expenses incurred during or due to the litigation (including court’s fees, lawyer’s fees, etc). Each party shall advance the payment for costs incurred by proce-dural acts performed or caused to be performed by it and therefore the claimant is not required to provide security for the defendant’s costs. However, in its final judgment, the court will decide which party has to bear the costs of the proceedings.

As a general rule, the party losing the litigation shall refund the costs incurred by the winning party. If one party wins the litigation only in part, the court may decide, with respect to the outcome of litigation, that each party cover their own costs of proceedings or may, considering the circumstances of the case, order one party to refund the other party an appropriate amount of costs (article 154 ZPP). If the litigation is brought to an end by conclusion of a court settlement, each party shall bear its own costs of proceedings, unless otherwise agreed upon by the settlement (article 159 ZPP).

In deciding which costs are to be refunded to a party, the court shall take into account only the expenses that were indispensable for the litigation. Such costs shall be determined following a care-ful examination of the relevant circumstances. If a tariff provides an account of the lawyer’s fees or other expenses, such fees and expenses shall be refunded according to the tariff (article 155 ZPP). Irrespective of the outcome of litigation, the party shall refund the opposing party the costs arising due to fault of the former or coin-cidence on its side.

The ruling on refunds shall be passed upon a specified request by a party in ex parte proceedings. In the request for the refund, the party shall determine the costs that are claimed. The party may request the refunding of costs until the completion of the main hear-ing and before the ruling on refunds has been passed. The motion for refunding of costs shall be determined in the judgment or decree by which the proceedings are completed (article 163 ZPP). The court’s decision on the costs of proceedings contained in the judgment may be subject to redress only by means of the appeal against a decree, unless the decision on the merits of dispute is being challenged at the same time (article 166 ZPP).

17 Funding arrangementsAre ‘no win, no fee’ agreements, or other types of contingency or

conditional fee arrangements between lawyers and their clients,

available to parties? May parties bring proceedings using third-party

funding? If so, may the third party take a share of any proceeds of the

claim? May a party to litigation share its risk with a third party?

The Slovenian Act on Attorneys’ Tariffs governs the calculation of legal fees and serves in particular as the basis for the court’s deci-sion on the reimbursement of the parties’ costs. It also applies to the evaluation and setting of the price for legal services rendered if no other agreement has been made between the party and the attorney. A party and his or her attorney may agree on other methods of cal-culating the fees in accordance with the Act on Attorneys’ Tariffs and the Act on Attorneys. Such special arrangements are not consid-ered by the court when refund of costs is decided upon. Contingency fees are permitted if concluded in writing and as long as the legal fees are not higher than 15 per cent of the entire amount awarded to the winning party by the court or arbitral tribunal.

Pursuant to an agreement between the defendant and a third party, the latter may take a share of any proceeds of the claim and may also share the defendant’s risk. In this case the real intention of the contractual parties (namely, of a defendant and a third party) on the share of the proceeds or on the share of the risk shall not be lim-ited if the contractual parties have not unanimously agreed to do so.

18 InsuranceIs insurance available to cover all or part of a party’s legal costs?

The Slovenian Insurance Act classifies in article 2 the types of insur-ance regarding the main risks to be covered. One of those classes is legal expenses insurance, which covers expenses and costs of litiga-tion. Insurance may cover all or part of a party’s legal costs and also potential liability for the opponent’s costs, depending on the insur-ance agreement. Currently, there are seven insurance companies in Slovenia registered to offer legal expenses insurance.

19 Class actionMay litigants with similar claims bring a form of collective redress? In

what circumstances is this permitted?

Class actions including a number of unidentified persons are not per-mitted; neither are there generally other forms of collective redress. The Slovenian Civil Procedure Act does, however, allow several per-sons to sue or to be sued in a single action and therefore to act as co-plaintiffs or co-defendants if the following conditions are fulfilled:(i) if in respect of the cause of action the co-plaintiffs or co-defend-

ants form a legal community; or if their rights or obligations are based upon the same factual and legal ground; or if they are joint and several debtors or creditors;

(ii) if the disputed claims or obligations are of the same type and based upon similar factual and legal ground and at the same time the same court has the subject-matter and territorial jurisdiction over each of the claims and each of the defendants; or

(iii) if is so provided by law (article 191 ZPP).

Subject to fulfilment of conditions under (i) and (ii) above, a party of the dispute is obliged to file a lawsuit or to be named as a plaintiff in the lawsuit to be entitled to the remedies and damages requested in the lawsuit. Therefore, points 1 and 2 of article 191 ZPP (referred to above) do not refer to a form of action that could be considered as a representative action or a class action.

As an exception, when there are several complaints filed at the court whereby their claims are based on the same or similar factual basis and at the same time their legal basis is the same, the court



may, after receiving answers to such complaints, perform a ‘model proceeding’ on the basis of one complaint (which should be dealt with preferentially) and temporarily suspend all others (article 279b ZPP). The court decides about the suspended proceedings (if they do not have any special features) considering the final judgment in the model proceeding. The court shall give the parties an opportunity to make a statement about suspension of the proceedings and realisa-tion of the model proceeding, but no objection is possible against a decision on suspension of the proceedings and performance of the model proceedings.

In accordance with (iii) above, the only real type of class actions or representative actions allowed in Slovenia is in the field of consumer protection. On 1 December 2007 a new Protection of Consumers against Unfair Commercial Practices Act entered into force implementing the Directive EC No. 29/2005 of the European Parliament and of the Council. According to article 13 of this new Act, consumers with claims that are essentially based on the same grounds do not need to file lawsuits on their own, but may be rep-resented in a representative action or a class action by the consumer protection organisations instead.

According to article 13 of the Protection of Consumers against Unfair Commercial Practices Act in conjunction with article 76 paragraph 1 of the Consumer Protection Act, the Consumer protec-tion organisations may start a legal action with the aim of annulling certain contracts concluded between the defendant and consumers, individual provisions in these contracts or general terms and condi-tions of business incorporated in these contracts.

A sustaining judgment shall have a general effect, such that any person may refer to a final judgment by which, pursuant to the type of lawsuit described in the previous paragraph, certain contracts, individual provisions of these contracts or general terms and condi-tions of business incorporated in these contracts were declared null and void. A judgment of refusal shall, to the contrary, only affect the parties concerned and shall not prevent the instituting of a new action in respect of the same claim, either by another consumer protection organisation or by persons who have legal standing to bring such declaratory action (article 76 paragraphs 2 and 3 of the Consumer Protection Act).

Throughout the duration of legal proceedings, it shall not be possible for a new legal action to be instituted in respect of the same claim between the same parties or between the same defendant and another organisation qualified to institute such action (article 76 paragraph 4 of the Consumer Protection Act).

20 AppealOn what grounds and in what circumstances can the parties appeal?

Is there a right of further appeal?

The judgment issued by the court of first instance may be appealed within 15 days from the day of service of the judgment, unless another time period is provided by the Civil Procedure Act. In dis-putes involving bills of exchange and cheques such period is eight days. A timely institution of an appeal shall prevent the judgment from becoming final in respect of the part subject to the appeal. Courts of second instance usually decide on appeals without a hear-ing. First-instance judgments may be appealed on grounds of severe violation of civil procedure provisions, incorrect and incomplete establishment of facts or incorrect legal assessment. Serious pro-cedural irregularities (if the public is unjustifiably excluded from attending the hearing, etc) may also lead to the nullity of a judgment. In principle, second-instance courts will review the judgment only with regard to the grounds for appeal alleged by the parties. If the appeal fails to indicate the parts of the judgment subject to attack, the court will review that part of the judgment in respect of which the appellant has lost the litigation. However, reasons that may ren-der the judgment null (major procedural irregularities such as a lack of jurisdiction or participation of challenged judges) will always

be considered by the court. Following an appeal of at least one of the parties, the court of appeal may reject the appeal as belated, incomplete or inadmissible, or set aside the judgment and refer the case back to the court of first instance for reconsideration, or it may either alter or confirm the judgment of the court of first instance.

A judgment of the first and second-instance courts may be sub-ject to further legal remedies, namely revision, request for protection of legality, reopening of proceedings and action for annulment of a court settlement.

21 Foreign judgmentsWhat procedures exist for recognition and enforcement of foreign

judgments?

The enforcement of a foreign judgment in Slovenia is subject to a declaration of enforceability to be issued by the Slovenian courts. Thus, foreign judgments will be declared enforceable only if they are enforceable in the state of origin and if reciprocity is ensured by state treaties or ordinances. Judgments issued within the European Union will be enforced as provided by Council Regulation EC No. 44/2001 on jurisdiction and the enforcement and recognition of judgments in civil and commercial matters, the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention from 19 June 1988) and in cases of enforce-ment of uncontested claims also the Regulation EC No. 805/2004 of the European Parliament. Reciprocity with some countries outside the European Union is ensured by bilateral treaties on recognition and enforcement.

22 Foreign proceedingsAre there any procedures for obtaining oral or documentary evidence

for use in civil proceedings in other jurisdictions?

To obtain oral or documentary evidence, foreign courts may file a request for legal assistance. The Slovenian courts will provide legal aid to foreign courts when provided so by international agreements and in all cases where reciprocity in provisions of legal aid is rec-ognised. The court shall deny legal aid to a foreign court if perfor-mance of the requested procedural act is contrary to laws of the Republic of Slovenia. Since Slovenia is a member state of the 1954 Hague Convention on Civil Procedure, its courts will grant legal assistance to other member states without requiring the security pay-ment for legal assistance. In addition, Slovenia has entered into vari-ous bilateral treaties in which the proceedings for the notification of documents and the taking of evidence are determined in detail.

The Slovenian courts will provide legal aid to foreign courts in a manner provided by domestic law. Therefore, unless otherwise pro-vided by an international agreement, the court shall proceed with a foreign court’s request for legal aid only when the request is commu-nicated through diplomatic channels and if the request is composed in the Slovenian language or a certified translation of the request is provided (article 175 to 178 ZPP).

The taking of evidence between the Slovenian courts and the courts of other member states of the European Union is regulated by Council Regulation EC No. 1206/2001 on cooperation between the courts of the member states in the taking of evidence in civil or com-mercial matters, which provides for two ways of taking of evidence: direct transmission of requests between the courts and the direct taking of evidence by the requesting court.

Arbitration

23 UNCITRAL Model LawIs the arbitration law based on the UNCITRAL Model Law?

The arbitration law in Slovenia is governed by the Slovenian Arbitration Act, which is based on the UNCITRAL Model Law.



The major Slovenian institutional arbitration is the Permanent Court of Arbitration (PCA), which is an autonomous and independ-ent arbitral institution attached to the Chamber of Commerce and Industry of Slovenia. The Court is the central arbitral institution in the Republic of Slovenia that resolves all kinds of commercial disputes, both for the domestic and international business commu-nity, by means of arbitration, conciliation or combined conciliation-arbitration proceedings. The internal organisation of the Court is regulated by its Rules of Organisation.

Proceedings of the PCA are regulated by two separate sets of rules, both in force as of 28 April 2000: Rules of Arbitration and Rules of Conciliation. The rules are mainly based on the UNCITRAL Arbitration Rules of 1976, but also contain some elements of other leading arbitral institutions.

The arbitral proceedings are regulated according to the generally recognised standards in this field. The rules provide that the princi-ple of autonomy of the parties regarding procedure will be respected as far as possible while ensuring that the arbitrators have sufficient power to conduct the proceedings if the parties cannot agree on pro-cedure or refuse to participate.

The parties may also decide to use the UNCITRAL Arbitration Rules in proceedings before the PCA. When properly requested or designated by agreement, the president of the Court will act as the appointing authority under the UNCITRAL Arbitration Rules.

24 Arbitration agreementsWhat are the formal requirements for an enforceable arbitration

agreement?

An arbitration agreement is defined as the parties’ agreement to sub-mit solutions of all or specified disputes between the parties (pre-sent or future, in respect of certain contractual or non-contractual legal relations) to the arbitration. It may be concluded as an arbitra-tion clause in an agreement or as an independent agreement. To be enforceable, arbitration agreements must either be in writing or be entered into by telegrams, telexes, faxes, e-mail messages or other means of communication or data saving, ensuring a record of the arbitration agreement that is achievable and appropriate for later application. An arbitration agreement is also considered to be con-cluded in writing if it forms a part of a disclosed document of a party whereby the subject of this document is presumed to be a part of a contract by the usage of trade. If concluded in such a manner, arbitration clauses that are a part of the general terms and condi-tions or other separate documents, rather than being part of a signed contract between the parties, are also enforceable under the current legislation.

Finally, an arbitration agreement is also validly concluded if a plaintiff files a complaint to the arbitration panel and the defend-ant does not object the arbitration’s competence at the latest in the response to the complaint (article 10 of the Arbitration Act).

Any pecuniary claim may be the subject of the arbitration agree-ment. Other claims may be the subject of the arbitration agreement only if they are capable of settlement (article 4 of the Arbitration Act).

25 Choice of arbitratorIf the arbitration agreement and any relevant rules are silent on the

matter, how many arbitrators will be appointed and how will they

be appointed? Are there restrictions on the right to challenge the

appointment of an arbitrator?

The number of arbitrators shall be set by the parties. In the absence of relevant rules in the arbitration agreement, the number of arbitra-tors shall be three (article 13 Arbitration Act).

In the absence of an agreement on proceedings of appointing the arbitrators:

• inthecaseofathree-memberarbitrationpanel–eachpartyshall appoint one arbitrator, and the two arbitrators appointed by the parties shall appoint a third arbitrator. If one party does not appoint the arbitrator in 30 days after the receipt of a request from the other party to appoint one, or if the two arbitrators do not appoint the third arbitrator in 30 days after their appoint-ment, the missing arbitrator shall be appointed by the court on any party’s request; or

• inthecaseofasinglearbitrator–ifthepartiescannotreachanagreement on the single arbitrator, one shall be appointed by the court at any party’s request.

If the parties have concluded an agreement on proceedings of appointing the arbitrators, and in the process of appointing them: one party does not act in accordance with the agreed process; or the parties, or as the case may be the appointed arbitrators, do not attain consent in accordance with the agreed process; or a third party (including an institution) does not perform some of its tasks in accordance with the agreed process, then any party may request from the court to adopt the necessary measures, unless there is a dif-ferent procedure provided for by the agreement on proceedings of appointing the arbitrators.

No objection is allowed against such court decisions. In appoint-ing the arbitrator, the court shall consider all qualifications and circumstances as agreed upon by the parties, which ensures the appointment of an independent and impartial arbitrator (article 14 of the Arbitration Act).

An arbitrator’s disqualification may be requested if the circum-stances suggest the existence of a reasonable doubt about the arbi-trator’s independence and impartiality or if the arbitrator does not have the agreed qualifications. A party may request the disqualifica-tion of an arbitrator that it appointed or was engaged in appoint-ment of only for reasons that became known to the party after the appointment (article 15 of the Arbitration Act). The parties may agree on the disqualification procedure. In the absence of such an agreement, a party requesting an arbitrator’s disqualification shall send to the arbitration panel a written and substantiated request for disqualification of an arbitrator within 15 days of becoming aware of the construction of the arbitration panel or any disqualification circumstances indicated above. If an arbitrator or the other party does not agree with the disqualification, then the arbitration panel adopts a decision on the disqualification. If the party does not suc-ceed with its disqualification request, it may request that the court decides about it. No objection is allowed against such court deci-sions. The arbitration panel (including the challenged arbitrator) continues with the procedure (article 16 of the Arbitration Act) until the court decision is issued.

26 Arbitral procedureDoes the domestic law contain substantive requirements for the

procedure to be followed?

The Slovenian Arbitration Act contains some of the basic rules of procedure, but the procedure can be determined differently with an arbitration agreement, provided that the following basic require-ments of the Arbitration Act are followed: parties in an arbitral pro-cedure enjoy equal rights. Every party shall have the right to make a statement (article 21 Arbitration Act). Parties may be represented by any domestic or foreign natural person with contractual capac-ity, or any domestic or foreign law firm (article 22 Arbitration Act). Parties shall be notified in due time about any hearing on which evidence will be presented (paragraph 2 of article 28 Arbitration Act). All applications, documents and other information presented to the arbitration panel by one of the parties shall be disclosed to the counterparty. Experts’ opinions and written evidence on which the arbitration panel’s award may be based shall be disclosed to all par-ties (paragraph 3 of article 28 Arbitration Act). The rights specified



above shall not be eliminated, and a possibility of the court’s assis-tance to the arbitration panel shall also not be limited.

In the absence of any agreement on the arbitration procedure, the arbitration panel may manage the procedure by any appropriate methods within the limits provided by the Arbitration Act (para-graph 2 of article 23 Arbitration Act).

27 Court interventionOn what grounds can the court intervene during an arbitration?

Court intervention is very limited. The courts may assist the arbitra-tion body where the latter’s power is limited, for example, in issuing subpoenas to witnesses, and may provide legal aid to produce spe-cific pieces of evidence that cannot be produced before the arbitra-tion (article 31 Arbitration Act). Apart from that, state courts assist in appointing arbitrators and may set aside arbitration agreements (see question 25).

28 Interim reliefDo arbitrators have powers to grant interim relief?

The arbitration panel may at any time before issuing an award, upon any party’s proposal, adopt an interim relief necessary accord-ing to the subject matter. The counterparty shall have the opportu-nity of making a statement about the proposal, and the arbitration panel may also demand appropriate security for such a measure. The arbitration panel may in exceptional circumstances, on its own (with prior notification of the parties) or upon proposal of any party change, suspend or reverse the adopted interim relief. If the party does not execute the interim relief voluntarily, the court shall decide about its execution on the counterparty’s proposal (article 20 of the Arbitration Act).

29 AwardWhen and in what form must the award be delivered?

Slovenian law stipulates no time limit for the delivery of the arbitral award. It must be issued in writing and signed by a majority of the arbitrators. The award shall contain an explanation, unless stipu-lated differently by the parties. The date of the award and the place of the arbitration shall also be mentioned. If not signed by all arbi-trators, the award has to contain the reasons why it is not signed by all arbitrators. Every party receives one copy of the award (article 35 of the Arbitration Act). Arbitral awards are considered to have the same effects on the parties as a final judgment would have (article 38 of the Arbitration Act).

30 AppealOn what grounds can an award be appealed to the court?

The parties may not waive their right to appeal an arbitral award. Upon an appeal to the court (called ‘a complaint for reversion of the award’), an arbitral award shall be reversed if it is proven by the plaintiff: • thatoneofthepartieswasincapableofconcludingthearbitral

agreement or the agreement is not valid under the chosen law (if the law was not chosen, Slovenian law is applicable);

• thattheplaintiffwasnotproperlyinformedabouttheappoint-ment of the arbitrator or arbitral proceedings, or it was in any other way deprived of the right to make a statement in front of the arbitration panel;

• thattheawardconcernsasubjectmatternotcoveredwiththearbitration agreement, or the award is over the limits determined in the arbitration agreement; or

• thatthecompositionofthearbitrationpanelorarbitrationpro-ceedings was not in accordance with the arbitration agreement, unless the arbitration agreement was against compulsory provi-sions of the Arbitration Act, or (in the absence of an arbitration agreement) was not in accordance with the Arbitration Act.

The award may also be reversed if the court by official duty deter-mines that the subject matter of the dispute shall not be subject of the arbitration agreement, or that the award is against Slovenian public order.

The complaint for reversion of the award may be filed in three months after the party filing the complaint received the award. The reversion of the award shall not have any effect on the arbi-tration agreement on which the arbitration was based (article 40 Arbitration Act).

31 EnforcementWhat procedures exist for enforcement of foreign and domestic

awards?

Domestic and foreign arbitral awards shall be enforced after the District Court of Ljubljana declares their enforceability. The court may refuse the request for enforcement if a reason for reversion by official duty exists, as explained in question 30. Since Slovenia is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, enforcement of foreign awards is also subject to this state treaty.

32 CostsCan a successful party recover its costs?

Yes, a successful party can recover its costs unless otherwise agreed upon in the arbitration agreement. If not stipulated otherwise by the arbitration agreement, the arbitration panel shall on a party’s request decide with the award or a decision terminating the pro-cedure which party is obliged to return the costs (including proce-dural costs, costs of representation and arbitrators’ rewards) and the amount of them. The decision about costs is made upon free weighing of evidence, considering the circumstances of the case and the result of proceedings. On a party’s request it is also possible to decide about the costs with a special decision of the arbitration panel after the award is issued (article 39 Arbitration Act).

Alternative dispute resolution

33 Types of ADRWhat types of ADR process are commonly used? Is a particular ADR

process popular?

The most popular method of ADR in Slovenia is mediation, both as part of the court proceedings and as an out of court settlement method. At the District Court of Ljubljana mediation is offered since 2001, at first only in civil matters, since 2002 in family matters and since 2003 in commercial matters.

In 2011, the parties agreed to attempt mediation in 3,768 cases before the Slovenian district courts and in 790 cases before the Slovenian local courts. Altogether 2,000 cases were successfully concluded before the Slovenian district and local courts through mediation in 2011. Mediation is popular because it is fast, volun-tary, confidential, free of charge and in no way affects the possible subsequent litigation between the parties.

The Mediation in Civil and Commercial Matters Act was adopted in 2008. Its goals are easier access to ADR and encourage-ment of ADR through encouraging the use of mediation and ensur-ing equilibrium between mediation and court proceedings. The legal



basis for the court’s offer for mediation is, apart from the Mediation in Civil and Commercial Matters Act, also article 11 of the ZPP, which states that the court shall see that the proceedings are com-pleted without any unreasonable delay and unnecessary expense, and shall prevent any abuse of procedural rights by the parties to the litigation. According to article 271 ZPP the judge may during the preparations for the main hearing accept a court settlement to be made on the record. During the proceedings, the court shall advise the parties of the possibility of settlement, and shall help them set-tle the matter in dispute (article 306 ZPP). On the parties’ proposal agreeing on an ADR attempt, the court may suspend the proceed-ings for not more than three months (article 305b ZPP). At the end of a successful mediation the parties may conclude an agreement in the form of a court settlement.

34 Requirements for ADRIs there a requirement for the parties to litigation or arbitration to

consider ADR before or during proceedings? Can the court or tribunal

compel the parties to participate in an ADR process?

ADR (meditation) may be offered by the judge or may be proposed by any party. The consent of both parties is necessary for ADR pro-ceedings. The parties may not be compelled to participate in any ADR process, but their failure to consent may delay proceedings. If the parties do not propose to the court to direct them to an alterna-tive dispute resolution procedure, the court may at any stage of the proceedings demand that the parties personally attend an informa-tive hearing regarding mediation (article 18 of the Slovenian Act on Alternative Dispute Resolution in Judicial Matters).

Miscellaneous

35 Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

A specific feature is the provision of a trial without undue delay by means of a procedure called a ‘small claims dispute’, which is used in disputes of monetary claims where the amount in dispute does not exceed €2,000 and in commercial litigation where the amount in dispute does not exceed €4,000. Small claims disputes do not include disputes relating to immoveable property, disputes arising out of copyright, disputes relating to the protection and use of inven-tions, distinctive signs or company names, disputes relating to the protection of competition and disputes for disturbance of posses-sion. Small claims disputes are regulated in an autonomous chapter in the Civil Procedure Act and are governed by specific rules. The main purpose of these rules is to ensure faster and more efficient court proceedings in reaching the final judgment with the intention of eliminating court backlogs.

Gregor Simoniti [email protected] Luka Grasselli [email protected]

Komenskega ulica 36 Tel: +386 1 300 76 50

1000 Ljubljana Fax: +386 1 433 70 98

Slovenia www.selih.si

Dispute Resolution 2013 issn 1741-0630

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