Comparative Guides
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Results: 4 Answers
International Arbitration
1.
Legal framework
1.1
What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
 
Serbia
The relevant legislation on arbitration in Serbia is the Arbitration Act, which was enacted in 2006.

Generally, there are no significant limitations on the scope of the statutory regime (Article 2).

Arbitration Act provides that an arbitration agreement must be concluded in writing. Consequently, an arbitration agreement which is not concluded in writing is null and void (Article 10(1)(2)). However, there is a possibility of an implicit arbitration agreement based on the fact that a party has not timely objected to the written initiation of arbitral proceedings (assuming that there was no written arbitration agreement in place based on which such arbitral proceedings were initiated). For other validity requirements for arbitration agreement, please see question 10 below.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
1.2
Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
 
Serbia
The Arbitration Act governs the resolution of disputes without foreign elements (internal or domestic arbitration) and disputes with a foreign element (international arbitration). International arbitration is concerned with the resolution of disputes arising from international business relations. Arbitration will be considered international in particular if:

  • at the time the agreement is concluded, the parties to an arbitration agreement have their places of business in different states;
  • one of the following places is situated outside the state in which the parties have their places of business:
    • the seat of arbitration, if determined in, or pursuant to, the arbitration agreement; or
    • the place where a substantial part of the obligations arising from the business relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or
  • the parties have expressly agreed that the subject matter of the arbitration is connected to more than one country (Article 3(1)).

If a party does not have a place of business, reference for that party is to be made to its habitual residence (Article 3(2)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
1.3
Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
 
Serbia
The Arbitration Act is in principle based on the UNCITRAL Model Law on International Commercial Arbitration. However, only 16 out of the 70 articles of the Arbitration Act were incorporated directly from the UNCITRAL Model Law; the other provisions were incorporated with certain amendments.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
1.4
Are all provisions of the legislation in your jurisdiction mandatory?
 
Serbia
Some of the provisions in the Serbian legislation are mandatory, while others are dispositive and the parties can thus modify them by agreement or by their choice of arbitration rules.

For example, the Arbitration Act provides that the parties must be timely notified of any hearings and any meetings of the arbitral tribunal for the purposes of inspection of goods, other property or documents (Article 40(1)). That is a mandatory provision which cannot be derogated from by the parties’ agreement (if Serbian arbitration law is applicable). On the other hand, the provision that prescribes that the arbitral tribunal shall decide whether to hold an oral hearing or to conduct the proceedings on the basis of documents and other written material is dispositive, because the parties may agree to exclude oral hearings (Article 39).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
1.5
Are there any current plans to amend the arbitration legislation in your jurisdiction?
 
Serbia
Although there have been some recent calls in the media for changes to the Arbitration Act, there are officially no current plans to amend the arbitration legislation.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
1.6
Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
 
Serbia
Yes. Serbia’s predecessor, the Socialist Federal Republic of Yugoslavia (SFRY), ratified the New York Convention in October 1981 and ultimately acceded to the convention on 26 February 1982. The reservations on non-retroactivity, reciprocity and commercial disputes were made at the time and remain in place to date (Article 1 of the Law on Ratification of the Convention on Recognition and Enforcement of Foreign Arbitral Awards, Official Gazette of the SFRY – International Agreements, 11/1981 of 9 October 1981). As one of the successor states of the SFRY, Serbia has been formally recognised as a contracting party to the convention since 27 April 1992.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
1.7
Is your jurisdiction a signatory to any other treaties relevant to arbitration?
 
Serbia
Serbia is also a party to the European Convention on International Commercial Arbitration and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Additionally, Serbia has concluded a number of bilateral legal assistance treaties and bilateral investment treaties containing arbitration-related provisions.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
2.
Arbitrability and restrictions on arbitration
2.1
How is it determined whether a dispute is arbitrable in your jurisdiction?
 
Serbia
Under the Arbitration Act, (objective) arbitrability is defined in brief terms: the parties may agree to arbitrate a pecuniary dispute concerning rights of which they may freely dispose, except for disputes that are reserved for the exclusive jurisdiction of the court (Article 5(1)). Therefore, arbitrability is generally determined by reference to the specific regulations governing the pertinent dispute.

In practice, certain disputes have been deemed non-arbitrable, including those concerning:

  • property rights over real estate; 
  • insolvency proceedings;
  • privatisation issues;
  • intellectual property; and
  • specific corporate matters relating to Serbian companies.
For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
2.2
Are there any restrictions on the choice of seat of arbitration for certain disputes?
 
Serbia
No, the parties are generally free to choose any seat they wish.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
3.
Arbitration agreement
3.1
What are the validity requirements for an arbitration agreement in your jurisdiction?
 
Serbia
Under the Arbitration Act, to be valid and enforceable, an arbitration agreement must:

  • refer to an arbitrable dispute;
  • be in writing;
  • be concluded by parties that have the necessary qualities or capacity;
  • not be concluded by a party acting under duress, fraud or mistake; and
  • refer to a dispute involving a defined legal relationship (Article 10).

An arbitration agreement can cover both existing and future disputes (Article 9).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
3.2
Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?
 
Serbia
Under the Arbitration Act, an arbitration clause is considered separable from the main contract (Article 28). In other words, the fact that a contract containing an arbitration clause is declared null and void does not automatically entail the invalidity of that clause.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
3.3
Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?
 
Serbia
In the absence of the parties’ agreement, the seat of arbitration is determined by the arbitral tribunal, taking into account the circumstances of the case, which include the convenience of the parties (Article 34(2)). If the parties have agreed to entrust the organisation of the arbitration to a permanent arbitral institution, the seat of arbitration shall be determined in accordance with its rules.

If the seat of arbitration is not determined in accordance with the preceding principles, the seat is deemed to be the place indicated in the arbitral award as the place where the award was made (Article 34(4)). Also, unless the parties have agreed otherwise, the arbitral tribunal may meet at any place it considers appropriate to conduct deliberations; hear witnesses, experts or the parties; and inspect goods, property or documents (Article 34(5)).

If the parties have failed to agree on the language of the proceedings, this question is determined by the arbitral tribunal. When making their decision, the arbitrators should take into account the seat of arbitration and the language used by the parties in their legal relationship. Permanent arbitral institutions may regulate the language of the arbitration by their own rules. Before the language of the proceedings is determined, a statement of claim, a statement of defence and other submissions may be submitted in the language of the contract, the language of the arbitration agreement or the Serbian language (Article 35).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
4.
Objections to jurisdiction
4.1
When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
 
Serbia
An objection that the arbitral tribunal does not have jurisdiction must be raised in the statement of defence, at the latest (Article 29(1)). Likewise, a party must raise a plea that the arbitral tribunal has exceeded the scope of its authority as soon as the matter alleged to be beyond the scope of the arbitral tribunal’s authority is raised during the arbitral proceedings (Article 29(3)).

In any event, the arbitral tribunal may allow the party to raise such an issue at a later date, if it finds that the delay was justified (Article 29(4)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
4.2
Can a tribunal rule on its own jurisdiction?
 
Serbia
Serbian law acknowledges the competence-competence principle (Article 28). Therefore, the arbitral tribunal may decide on its own jurisdiction, including any objection regarding the existence or validity of an arbitration agreement.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
4.3
Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
 
Serbia
If the arbitral tribunal decides on the objection as a preliminary question, any party may request the competent court, within 30 days of being notified of the decision, to decide the matter. The court’s decision is not subject to appeal (Articles 30(2) and (3)). In the meantime, the arbitral tribunal may continue the arbitral proceeding and render an award while the proceedings before the court are pending (assuming that the arbitral tribunal has retained jurisdiction) (Article 30(4)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
5.
The parties
5.1
Are there any restrictions on who can be a party to an arbitration agreement?
 
Serbia
Restrictions in this regard (ie, subjective non-arbitrability) generally relate to deficiencies in contractual capacity, which thus affect the validity of the arbitration agreement. Under the Arbitration Act, any natural or legal person (including the state and its entities) with the capacity to be a party in a civil procedure pursuant to civil procedure law may agree to arbitrate (Articles 5(2) and (3)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
5.2
Are the parties under any duties in relation to the arbitration?
 
Serbia
The only explicit duty of the parties under the Arbitration Act is the duty to pay an advance on costs upon the order of the arbitrators (Article 18(3)). Other than that, certain general duties, such as the duty of good-faith behaviour (a general duty under both Serbian civil procedure law and contract law), might be implied from the civil procedure principles. However, the arbitrators should be careful in applying any such rules beyond the Arbitration Act, given that the Arbitration Act does not provide for general subsidiary application of civil procedure law to arbitration proceedings.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
5.3
Are there any provisions of law which deal with multi-party disputes?
 
Serbia
No provisions of the Arbitration Act explicitly regulate multi-party arbitration or the appointment of arbitrators in such cases. Given that there is no apparent prohibition of multi-party arbitration, the question is in practice left to the parties’ agreement and the applicable institutional rules, if any.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
6.
Applicable law issues
6.1
How is the law of the arbitration agreement determined in your jurisdiction?
 
Serbia
The parties are generally free to choose any law to govern their arbitration agreement. However, some aspects of an arbitration agreement might not be completely covered by the parties’ choice of law. For instance, capacity is typically determined according to the personal law of the party in question.

If the arbitration is seated in Serbia, the arbitration agreement will also be subject to the mandatory rules of the Arbitration Act (Article 2(3)).

In practice, parties will rarely choose an applicable law specifically for the arbitration agreement. In most cases, such choice is implied through the choice of law for the main contract (assuming that the arbitration agreement is made in the form of an arbitration clause).

If the parties have not chosen a law applicable to the arbitration agreement, it might be concluded that the law of the seat of arbitration should apply. This conclusion follows from the Arbitration Act’s general provisions, which provide that the act applies by default to arbitrations seated in Serbia. The same conclusion also follows implicitly from the rules on the setting aside, recognition and enforcement of arbitration awards, which prescribe that:

  • a domestic award will be set aside if the arbitration agreement is not valid under Serbian law (ie, the law of the seat of arbitration (Article 58(1)(1))); and
  • a foreign award will not be recognised and enforced in Serbia if the arbitration agreement is not valid under the law of the place where the award was made (ie, under the law of the seat of arbitration (eg, see Article 66(1)(1) of the Arbitration Act).
For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
6.2
Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
 
Serbia
Yes, the tribunal will uphold the parties’ agreement as to the substantive law of the dispute. In that case, renvoi is explicitly excluded, unless the parties agree otherwise (Article 50(2)).

If the parties have not designated the applicable law or legal rules, the arbitral tribunal shall determine such law or rules on the basis of appropriate conflict of laws provisions. The arbitral tribunal shall always take into account the terms of the agreement and customary rules (Articles 50(3) and (4)). Furthermore, if the parties expressly agree, the arbitral tribunal may render a decision ex aequo et bono (Article 49(2)).

The Arbitration Act regulates the question of applicable law only in case of international arbitration (Article 50).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
7.
Consolidation and third parties
7.1
Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
 
Serbia
The Arbitration Act does not explicitly provide for consolidation of separate arbitral proceedings. However, consolidation is not excluded and could be effected, for example, if the parties have agreed to apply institutional arbitration rules which provide for this possibility.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
7.2
Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
 
Serbia
Serbian law does not explicitly regulate joinder of additional parties to an arbitration that has already been commenced. As is the case with consolidation, joinder is not excluded and may therefore be agreed upon by the parties.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
7.3
Does an arbitration agreement bind assignees or other third parties?
 
Serbia
According to the Arbitration Act, unless the parties have agreed otherwise, an arbitration agreement shall remain in force even in case of:

  • assignment (cession) of the contract or claim;
  • subrogation; or
  • other cases of transfer of claim.

Beyond these situations, the effect of an arbitration agreement on third parties is not regulated by the Arbitration Act.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
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
9.
The role of the court during an arbitration
9.1
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
 
Serbia
The court seized of an action in a matter which is the subject of an arbitration agreement shall, upon a party’s motion prior to the discussion of the merits, dismiss the action for lack of jurisdiction. The court will not declare itself incompetent if it finds that the arbitration agreement is manifestly null and void, inoperative or incapable of being performed (Article 14).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
9.2
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
 
Serbia
Generally, unless the parties agree otherwise, the provisions of the Arbitration Act apply only to arbitrations seated in Serbia (if the arbitration is seated in Serbia, the mandatory provisions of the Arbitration Act will apply in any event) (Article 2). Furthermore, the court may intervene in an arbitration proceeding only in cases prescribed by the Arbitration Act (Article 7).

According to the Arbitration Act, the court’s powers during arbitration proceedings are limited to:

  • deciding on the jurisdiction of the arbitral tribunal (see question 15);
  • rendering provisional measures, upon a party’s request, before or during the arbitration proceedings (even if the arbitration is seated outside of Serbia; see question 29(b));
  • assisting with the appointment of an arbitrator (see question 25);
  • deciding on a challenge to an arbitrator and termination of the arbitrator’s mandate (see questions 26 and 27);
  • deciding on the challenge of experts (Article 45(3)); and
  • assisting with the taking of evidence - the arbitrators may request assistance in taking evidence from a court and will assess the evidence taken before the court as evidence taken by itself (see question 29(c)).

After completion of the arbitral proceedings, besides the obvious role it plays in procedures for the recognition and enforcement or setting aside of the award, the court may also serve as the arbitration award’s depositor, but only upon the mutual request of the parties (this should generally also be possible with interim or partial awards).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
9.3
Can the parties exclude the court's powers by agreement?
 
Serbia
In principle, it seems that none of the powers of the court, except the power to serve as depositor, may be excluded as such by agreement of the parties. However, most of these situations arise only when the parties are unable to reach agreement on the relevant issue by themselves (or by resorting to the relevant institution or its rules of procedure), so the court’s role in arbitral proceedings nevertheless remains limited.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
10.
Costs
10.1
How will the tribunal approach the issue of costs?
 
Serbia
The parties shall bear the costs of arbitration, which are determined by the arbitral tribunal (Article 18). When making their decision on costs, which is a necessary part of the arbitral award, the arbitrators should consider all facts of the case, including the outcome. The parties also have the duty to advance the costs of arbitration upon an order of arbitral tribunal to that effect (Article 18(3)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
10.2
Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
 
Serbia
There are no restrictions in this respect under the Arbitration Act. The determination of costs is generally left to the arbitrators.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
11.
Funding
11.1
Is third-party funding permitted for arbitrations seated in your jurisdiction?
 
Serbia
The Arbitration Act does not regulate third-party funding and there are no reported Serbian court decisions on this matter.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
12.
Award
12.1
What procedural and substantive requirements must be met by an award?
 
Serbia
In order to be valid and enforceable, an arbitral award must:

  • be issued in writing (Article 51(1));
  • be signed by all arbitrators (Article 51(1));
  • indicate a date and place of issuance (Article 53(2)); and
  • contain an introduction, an operative part, a decision on costs and the reasoning, unless the parties have excluded this in the arbitration agreement (Article 53(1)). An award by consent need not include the reasoning (Article 54).

Where there is more than one arbitrator, the award will be valid if signed by the majority, provided that the arbitrators give the reason for the missing signature (Article 51(4)).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
12.2
Must the award be produced within a certain timeframe?
 
Serbia
The Arbitration Act does not specify a time limit for the arbitral tribunal to render an award.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
13.
Enforcement of awards
13.1
Are awards enforced in your jurisdiction? Under what procedure?
 
Serbia
A domestic and a foreign award (the latter after recognition by the competent court) shall have the effect of a final judgment of the domestic court and shall be enforced in accordance with the provisions on enforcement (Article 64). The court may also decide on the recognition of a foreign arbitral award as a preliminary matter in the enforcement proceedings (Article 46 of the Enforcement and Security Act).

The request for recognition and enforcement shall be submitted to the court within whose territory enforcement is sought, accompanied by:

  • the original arbitral award or a certified copy thereof;
  • the arbitration agreement or a document witnessing the acceptance of arbitration, in the original or a certified copy thereof; and
  • a certified translation of the foreign arbitral award and the arbitration agreement into the official language of the competent court (Article 65).

The grounds for refusing recognition and enforcement are similar to those under the New York Convention and the UNCITRAL Model Law (Article 66).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
14.
Grounds for challenging an award
14.1
What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
 
Serbia
The award can be challenged on the following grounds:

  • The arbitration agreement is not valid under the law that the parties have chosen or, if the parties have made no choice in this regard, under Serbian law;
  • The party challenging the award was not properly notified of the appointment of an arbitrator or the arbitration proceedings, or was otherwise unable to present its case;
  • The award decides on a matter that is not contemplated by or falling within the terms of the arbitration agreement, or on matters that are beyond the scope of the arbitration agreement. The court may set aside only that part of the award that falls outside the scope of the arbitration agreement if it can be separated from the rest of the award;
  • The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement conflicted with a mandatory provision of the Arbitration Act or otherwise was not in accordance with the arbitration agreement; or
  • The award was based on a false statement of a witness or expert or on a forged document, or resulted from a criminal act of an arbitrator or a party, where this has been proved by a final and binding court judgment.

The court may further set aside an award if it finds that:

  • the subject matter of the dispute is not arbitrable under Serbian law; or
  • the effects of the award conflict with Serbian public policy (Article 58).
For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
14.2
Are there are any time limits and/or other requirements to bring a challenge?
 
Serbia
An application to set aside an arbitral award must be filed within three months of the date on which the applicant receives the award (Article 59).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
14.3
Are parties permitted to exclude any rights of challenge or appeal?
 
Serbia
The parties may not exclude the right to set aside an award in advance (Article 62).

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
15.
Confidentiality
15.1
Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?
 
Serbia
The Arbitration Act does not explicitly regulate the confidentiality of arbitration. However, as confidentiality is arguably considered one of the general principles of arbitration, it may follow that this is also implied under Serbian law. However, without any explicit provisions to this effect, uncertainty remains not only regarding whether confidentiality applies, but also regarding the extent to which it applies. Therefore, if the parties wish to ensure the confidentiality of arbitration proceedings, they are advised to agree on this explicitly, either in the underlying agreement or terms of reference or through the application of certain procedural or institutional rules that prescribe it.

For more information about this answer please contact: Jelena Bezarević Pajić from Schoenherr Attorneys at Law
15.2
Are there any exceptions to confidentiality?
 
Serbia
As a duty of confidentiality is not prescribed by the Arbitration Act, there are no explicit exceptions thereto under this law.

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