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Dispute Resolution System in Serbia

Milena Djordjevic
September 2009

-    Court System in Serbia
-    Arbitration

Court System in Serbia

1. Courts - The judicial power in Serbia belongs to the courts. Courts are separated and independent in their work and should perform their duties in accordance with the Constitution, Law and other general acts, when stipulated by the Law, generally accepted rules of international law and ratified international conventions.

2. Court Organization - The organization of courts is regulated by the new Law on Court Organization [1] and the Law on Courts.[2] Provisions of the former have for the most part replaced the provision of the latter legislation. However, since articles 21-28 of the Law on Court Organization regulating court jurisdiction will not come into effect until January 1, 2010, articles 12-20 of the Law on Courts are still effective.

          Courts in Serbia are either courts of general jurisdiction or special courts. Proceedings in both types of courts are similar. The courts of general jurisdiction include 138 municipal and 30 district courts and the Supreme Court of Serbia. Special courts are commercial courts. According to the new Law, a different court organization and jurisdiction is envisioned, however these provisions of the Law have not yet come into effect.[3]

3. Court of General Jurisdiction - Currently, there are three types of courts of general jurisdiction in Serbia: municipal courts, district courts and the Supreme Court of Serbia.

          Jurisdiction of municipal courts is limited to the territory of one or several municipalities. They primarily deal with civil cases involving natural persons. In some cases, their jurisdiction may extend to legal persons if the dispute concerned does not arise from a commercial activity. Municipal courts are also the courts of first instance in certain criminal cases.

          District courts have original jurisdiction over cases involving the infringement of intellectual property rights (where at least one party is a natural person) and over some criminal cases. They also act as appellate courts with respect to decisions of municipal courts within their territorial jurisdiction.

          The Supreme Court of Serbia has appellate jurisdiction only. As a rule, decisions of a district court, acting as the court of first instance, are appealed to the Supreme Court of Serbia. Under certain circumstances, an extraordinary legal remedy, known as "appeal for revision", in a case first heard in a municipal or commercial court and subsequently appealed to a district or High Commercial Court, may be lodged with the Supreme Court of Serbia.[4] The Supreme Court of Serbia also:

Determines general legal positions in order to provide uniform application of law by courts;

Provides opinions on draft laws and other regulations relevant for performance of judicial authority;

Analyzes application of laws and other regulations and work of the courts; selects the invited members of the High Judicial Council among judges and proposes candidates for one permanent member of the High Judicial Council;

Determines criteria for evaluation of diligent and successful performance of judge's function;

Determines the activities that are contrary to the dignity and independence of a judge and damaging to the reputation of the court; and

Determines the types and manner of advanced training of judges and performs other tasks prescribed by law.

4. Commercial Courts - There is a traditional distinction in Serbia between commercial courts and courts of civil (general) jurisdiction. Commercial courts have original jurisdiction over disputes arising from commercial activities, including those stemming from commercial aspects of intellectual property. Their jurisdiction extends to both legal and natural persons engaged in commercial activities, in cases where both parties are economic operators (when they are parties to commercial contracts). When only one of the parties is an economic operator and the other is not, such disputes are decided by courts of civil (general) jurisdiction and not by commercial courts. As an exception, in bankruptcy proceedings, commercial courts have jurisdiction over all disputes where an economic operator is in bankruptcy in relation to other economic or non-economic operators.

          Commercial courts in Serbia are organized on two levels as: commercial courts of first instance and High Commercial Court, deciding on an appeal to a lower court decision. There are 16 commercial courts with specifically defined territorial jurisdiction.[5]

          The High Commercial Court generally has appellate jurisdiction over lower commercial courts, but on rare occasions may also act as a court of original jurisdiction.

          The judgments of the High Commercial Court may be subject to an appeal for revision before the Supreme Court of Serbia.

5. Constitutional Court - The Constitutional Court is an autonomous and independent state body which protects constitutionality and legality, as well as human and minority rights and freedoms. Proceedings of assessing the constitutionality may be instituted by state bodies, bodies of territorial autonomy or local self-government, as well as at least 25 deputies. The procedure may also be instituted by the Constitutional Court itself. Any legal or natural person has the right to an initiative to institute proceedings of assessing the constitutionality and legality. A constitutional appeal may be lodged against individual general acts or actions performed by state bodies or organizations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been applied or not specified.


Arbitration

1. In General - It is widely accepted that it is in the best interest of commercial entities to have their disputes resolved by means of alternative dispute resolution and not in court. There are several means of alternative dispute resolution, yet, only two have found their way in commercial practice of Serbia and have been regulated by the law. These are: mediation and arbitration. Arbitral proceedings can take a form of ad hoc proceedings or proceedings before an institutional court of arbitration. The ad hoc proceedings are governed by the Law on Arbitration, [6] modeled upon the UNCITRAL Model Law on International Commercial Arbitration, while the institutional proceedings are governed by its Rules (which have to be in compliance with mandatory provision of the Law on Arbitration and could be filled in with the rules that arbitrators deem appropriate as long as they are in accordance with the general principles on which the Law on Arbitration is based). Currently, there is only one arbitral institution in Serbia for resolution of disputes with foreign element -- the Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce.

2. The Foreign Trade Court of Arbitration - The FTCA is a permanent arbitration body that provides for conciliation and arbitration services for settlement of disputes of international business character when the parties have agreed upon its jurisdiction in accordance with its Rules.[7] This arbitration institution was founded in 1946 and already has an admirable, sixty-year long tradition, during which it has handled over 8,000 cases. The FTCA is an autonomous body, independent in its decision-making. The seat of this Arbitral institution is in Belgrade, the capital of Serbia. Its awards have the effect of a final judgement of the domestic court and are enforced in accordance with the provisions of the Law on Enforcement Procedure.


FOOTNOTES

1. Official Gazette of the RS Nos. 63/01, 42/02, 27/03, 103/03, 29/04), 101/05 and 46/06.

2. Official Gazette of the RS No.46/91, 60/91, 18/92, 71/92, 63/01, 42/02, 27/03 and 29/04.

3. According to Article 10 of the Law on Court Organization appellate courts are envisioned among the courts of general jurisdiction, beside municipal, district courts and the Supreme Court of Serbia, and Administrative court and Court of Offences (first level court and High Court of Offences) are envisioned among special courts, beside commercial courts and High Commercial Court.

4. More on the Supreme Court of Serbia see: <http://www.vrhovni.sud.srbija.yu>.

5. More on commercial courts in Serbia see: <http://www.trgovinski.sud.srbija.yu>.

6. Official Gazette of the RS No. 46/06.

7. The Rules of the Foreign Trade Court of Arbitration Attached to the Serbian Chamber of Commerce, Official Gazette of the RS No 52/07.


©Pace Law School Institute of International Commercial Law - Last updated September 9, 2009
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