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Results: 4 Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
 
Serbia
The parties are free to agree on the procedure for appointing the arbitrators (whether through an explicit agreement or the application of certain procedural/institutional rules). Failing such agreement, the arbitrators shall be appointed in accordance with the Arbitration Act (Article 17(1)).

According to the Arbitration Act, if the dispute is to be resolved by a sole arbitrator, the parties shall agree on his or her appointment within 30 days of the date on which one party requests the other jointly to appoint the arbitrator. Otherwise, the appointment shall be made by the appointing authority. If there is no appointing authority or if the appointing authority fails to do so, the appointment shall be made by the competent court (Article 17(2)).

If the dispute is to be resolved by three arbitrators, each party shall appoint one arbitrator within 30 days of the date on which the other party requests it to do so. If such appointment is not made, the arbitrator shall be appointed by the appointing authority designated by the parties. If there is no appointing authority or the appointing authority fails to make the appointment, the appointment shall be made by the competent court. The presiding arbitrator shall be elected by the two previously appointed arbitrators within 30 days of the date of their appointment. Should they fail to elect the presiding arbitrator, the appointment shall be made by the appointing authority; if there is no appointing authority or the appointing authority fails to do so, the appointment shall be made by the competent court (Article 17(2)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
Serbia
The number of arbitrators is determined by the parties. The arbitral tribunal shall be composed of one, three or more arbitrators (the number of arbitrators must always be odd). Failing an agreement in this regard, the number of arbitrators shall be determined by the appointing authority designated by the parties. If the appointing authority fails to do so, the number of arbitrators will be determined by the competent court (Article 17(2)).

The parties are free to appoint as arbitrators any natural persons who:

  • have full contractual capacity;
  • have qualities agreed upon by the parties; and
  • are impartial and independent of the parties and the subject matter of the dispute.

Additionally, a person sentenced to imprisonment may not serve as arbitrator while the consequences of this conviction remain effective (Article 19).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
Serbia
An arbitrator may be challenged only if there are circumstances that may justifiably raise doubts as to his or her impartiality or independence, or if he or she does not possess the qualities agreed by the parties (Article 23). The parties are free to agree on the procedure for challenging an arbitrator. If they fail to do so, the Arbitration Act provides that the requesting party should submit a written request within 15 days of becoming aware of the arbitrator’s appointment or the grounds for challenge. A party cannot challenge an arbitrator it has appointed, unless the grounds for challenge materialise or the party becomes aware of such grounds after the appointment. Unless the parties have agreed otherwise, the competent court will decide on the challenge (Article 24).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.4
If a challenge is successful, how is the arbitrator replaced?
 
Serbia
An arbitrator may withdraw from his or her office by issuing a written statement; or the parties may agree to terminate his or her mandate if he or she becomes unable to perform his or her functions for justifiable reasons, including the grounds for challenge. Failing an agreement on termination of the arbitrator’s mandate, a party which considers that an arbitrator has become unable to perform his or her functions may request the permanent arbitration institution or the competent court to decide on the termination of the arbitrator’s mandate (Article 25). If the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed in accordance with the provisions of the Arbitration Act (Article 26).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
Serbia
Under the Arbitration Act, an arbitrator:

  • before accepting the appointment or afterwards (if relevant circumstances arise after his or her appointment), shall disclose to the parties any circumstances that may justifiably raise doubts as to his or her impartiality or independence (Article 21);
  • is obliged to perform his or her duties efficiently and in good faith (Article 22);
  • must ensure equal treatment of the parties, and must provide each party with an opportunity to present its case and evidence, and to state its position with respect to the acts and proposals of the opposing party (Article 33);
  • must notify the parties of any hearings and any meetings of the arbitral tribunal for the purposes of inspecting goods, other property or documents (Article 40); and
  • must ensure that all submissions, expert reports and evidence are delivered/exchanged between the parties (Article 40).

Other than these statutory duties, the arbitrators may be subject to other duties based on parties' agreement and/or agreement between the parties and the arbitrator(s) (ie, terms of reference/terms of appointment).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
Serbia
(a) Procedure, including evidence?

If the parties fail to agree on the rules of procedure, the arbitral tribunal may conduct the arbitral proceedings in such a manner as it considers appropriate, in accordance with the provisions of the Arbitration Act (Article 32(3)).

Likewise, the arbitrators may decide on the admissibility, relevance and probative value of the proposed and presented evidence, unless the parties have agreed otherwise (Article 32(4)).

(b) Interim relief?

Unless otherwise agreed by the parties, the arbitrators may order interim relief at a party’s request. The Arbitration Act is not particularly detailed in this regard and states only that the arbitrators may order interim measures that they consider necessary in respect of the subject matter of the dispute, and may at the same time order the opposing party to provide appropriate security (Article 31).

(c) Parties which do not comply with its orders?

There are no specific powers in this respect, especially not of a coercive nature. Generally, the arbitrators may conduct the proceedings in a way that they deem appropriate and may thus draw any inferences that they consider suitable towards a party that does not comply with their orders. However, when it comes to evidentiary matters, since the arbitrators cannot force the parties to abide by their orders, they are expressly empowered to request assistance in taking evidence from a court (Article 46).

(d) Issuing partial final awards?

The arbitrators are granted the power to issue partial awards (Article 48(2)). A partial award is rendered if only a part of the claim is decided. Although the Arbitration Act does not define the conditions for issuing partial awards, these might be drawn from Serbian civil procedure principles, which provide that a partial judgment might be rendered if several claims are put forward by the claimant and only some of those claims are ready for a final ruling (Article 346 of the Civil Procedure Act).

(e) The remedies it can grant in a final award?

The Arbitration Act does not expressly limit the types of remedies that can be granted by arbitrators in arbitrations seated in Serbia. The available types of relief are primarily related to the law applicable to the merits. This principle is subject only to Serbian public policy restrictions.

(f) Interest?

The Arbitration Act is silent on the matter of interest. In Serbia, the applicable interest rate is either determined by the parties in the underlying agreement (contractual interest rate) (Articles 399 to 402 of the Contracts and Torts Act) or provided for under the law (statutory interest rate) (Articles 277 to 279 of the Contracts and Torts Act). While these rules are generally a part of substantive law and will apply only if Serbian law applies as such, it should also be noted that Serbian law prohibits excessive interest rates and interest on interest (except in credit transactions involving banks). However, it is still questionable whether the breach of such principles would be deemed a breach of Serbian public policy in terms of a procedure to set aside or recognise and enforce an award.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
Serbia
If a claimant, without showing sufficient cause, fails to communicate its statement of claim after filing the request for arbitration, the arbitral tribunal shall terminate the proceedings. If a respondent fails to submit its response to a claim, attend a hearing or submit evidence, the proceedings will continue and the arbitral tribunal will base its decision on the submitted evidence. A respondent’s failure to submit a response to the claim will not be considered an admission of the claim or its allegations (Article 42).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
8.8
Are arbitrators immune from liability?
 
Serbia
The Arbitration Act does not regulate the issue of arbitrators’ immunity. In practice, immunity is commonly agreed in the terms of reference or terms of appointment for each particular case; but even then, liability cannot be excluded in cases of wilful misconduct or gross negligence on the arbitrators’ part. Likewise, as a matter of principle, criminal liability may not be excluded.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law