BOSNIA AND HERZEGOVINA 3
Bosnia and Herzegovina No. 3. Elektrogospodarstvo Slovenije – razvoj in inžinjering d.o.o. (EGS) v. Rudnik i termoelektrana Ugljevik a.d. Ugljevik, Okružni Privredni Sud [District Commercial Court], Bijeljina, Case No. 59 0 Ps 018507 12 Ps 3, 17 September 2012 and Viši Privredni Sud [High Commercial Court], Banja Luka, Case No. 59 0 Ps 018507 12, 14 March 2013
The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.