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BOSNIA AND HERZEGOVINA 3 A
Okružni Privredni Sud, Bijeljina, 17 September 2012
(Elektrogospodarstvo Slovenije-razvoj in inžinjering d.o.o. v. Rudnik i termoelektrana Ugljevik a.d. Ugljevik)
BOSNIA AND HERZEGOVINA 3 A
The District Commercial Court of Bijeljina referred a dispute concerning the construction and joint operation of a thermal power plant to arbitration, finding that the requirements for referral under the Convention were met: the parties' contract contained an arbitration clause in writing that concerned existing or potential disputes under the contract, and an arbitrable matter; had been concluded by parties having the necessary legal capacity; and was not null and void, inoperative or incapable of being performed. It was irrelavent that the clause referred disputes to an entity -- the Joint Association of the Yugoslav Electric Power Industry -- which no longer existed. This decision was later affirmed by the High Commercial Court at Banja Luka (BOSNIA AND HERZEGOVINA 3 B).
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.