Answer ... If there is an arbitration agreement between the parties, upon a party’s objection to that effect, the court shall declare that it lacks jurisdiction, revoke all actions taken in the proceedings and refuse to rule on the claim, unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. Such objection should be raised no later than the statement of defence (Article 10 of the Arbitration Act; Article 21 of the Civil Procedure Act).
Answer ... Where the seat of arbitration is in Montenegro, the Montenegrin court may decide on:
- the appointment of arbitrators, as described in question 24 (Article 13);
- the challenge of arbitrators, if the parties do not agree on the challenge procedure or if the arbitral tribunal rejects the request for challenging an arbitrator (Article 16);
- the termination of an arbitrator’s mandate, if the arbitrator fails to withdraw and the parties fail to agree on the termination of the arbitrator’s mandate (Article 17);
- the jurisdiction of the tribunal and acts that exceed the scope of its authority, if the arbitral tribunal rules on the jurisdictional objection or objection that the tribunal has exceeded the scope of its authority as a preliminary question (Article 20); and
- the setting aside of a domestic arbitral award (Article 47).
Regardless of whether the seat of the arbitration is in Montenegro, a Montenegrin court may:
- assist the tribunal in taking evidence (Article 39);
- recognise a valid arbitration agreement by rejecting jurisdiction and revoking all actions already taken before the court (Article 10);
- order interim measures, whether before or during the arbitral proceedings (Article 11);
- recognise and enforce arbitral interim measures, irrespective of the country in which they were ordered, provided that there are no grounds to refuse recognition and enforcement of interim measures (Articles 27 and 28); and
- recognise and enforce foreign arbitral awards, provided that there are no grounds to refuse recognition and enforcement (Article 51).
Answer ... The Arbitration Act does not deal with this issue explicitly, save for expressly excluding the possibility for the parties to waive in advance their right to set aside the award (Article 48(4)). Given that the courts’ powers are vested in them directly by the Arbitration Act, it is disputable whether the parties could, of their own accord and in all cases, divest the courts of such statute-based powers. In any event, the possibility of waiving specific rights should be assessed separately and on a case-by-case basis.