Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
International Arbitration
The role of the court during an arbitration
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

Answer ... 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
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?

Answer ... 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
Can the parties exclude the court's powers by agreement?

Answer ... 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
International Arbitration