According to the Law on Arbitration, enacted on 10 September 2008, arbitration is a recognized instrumentfor the resolution of both domestic and international disputes between physical persons and legal entities.
In Kosovo, all disputes related to civil and economic matters may be arbitrated, but only if there is anarbitration agreement between the parties indicating consent to arbitration. The arbitration agreement mustbe in writing; however, this requirement is deemed to have been satisfied if the arbitration agreement isrecorded by means of letters, telefaxes, telegrams or other means of telecommunication or electroniccommunication etc.
In the event a matter is pending before a court which is the subject of arbitration, the court shall reject thematter if a party invokes the arbitration agreement in its defence. The parties may agree on a solearbitrator or on a panel of arbitrators, provided that the panel is composed of an odd number of arbitrators.However, in the event the parties fail to specify the number of arbitrators, the number shall be three, witheach party appointing one and the two party-appointed arbitrators selecting the third arbitrator.
The arbitral tribunal may issue preliminary orders that are enforceable by the court upon request of a party,if that party gives credible evidence that an immediate or irreparable injury, loss or damage will result tothe party if no preliminary order is granted. However, the arbitral tribunal may require any party to provideappropriate security in connection with such preliminary orders.
In arbitrations involving international issues, the arbitral tribunal shall apply the law designated by theparties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitraltribunal shall apply the law determined by the rules of private international rights. In all other cases, thearbitral tribunal shall apply Kosovo law.
According to Article 36 of the law on Arbitration, a party may challenge an arbitral award before the court;however, the award will only be set aside if the applicant proves that:
-a party to the arbitration agreement did not have the capacity to act;
-the arbitration agreement is not valid under the law determined as applicable by the parties orthe arbitral tribunal or, in the absence of such determination, under the law applicable in Kosovo;
-the applicant was not given proper notice of the appointment of the arbitrator(s) or of the arbitralproceedings or was otherwise unable to present his/her case;
-the award deals with an issue not contemplated by or not falling within the terms of thesubmission to arbitration, or it contains decisions on matters beyond the scope of thesubmission to arbitration, provided that, if the decisions on matters submitted to arbitration canbe separated from those not submitted, that part of the award which contains decisions onmatters submitted to arbitration may be recognized and enforced; or,
-the composition of the arbitral tribunal or the arbitral procedure was not in accordance with theprovisions of the law or a valid arbitration agreement, under the condition that such defect hadan impact on the arbitral award.
The award can also be set aside if the court finds that:
-the subject matter of the arbitration is prohibited by law; or
-the enforcement of the award conflicts Kosovo public policy (ordre public).
Unless the parties have agreed otherwise, a request for setting aside an arbitral award shall be submittedto the court not later than 90 (ninety) days after the award was received by the respective party.Otherwise, an arbitral decision is binding on the parties involved in the arbitration, and the arbitral decisionshall have the same effect between the parties as a final and binding court decision.
2. ENFORCEMENT OF FOREIGNARBITRAL AWARDS
Foreign awards, rendered outside of Kosovo, can be recognized and become enforceable in Kosovo bymaking a request for recognition and enforcement to the Basic Court in Prishtina. The request for therecognition and enforcement of a foreign award must be accompanied by:
-the authenticated original award or a certified copy thereof;
-the original arbitration agreement or a certified copy thereof; and,
-a certified translation of the arbitration agreement and the arbitral award into an official languageof Kosovo if the award or agreement is not made in an official language of Kosovo.
Recognition and enforcement of the award may be refused, at the request of the party against whom it isinvoked, if that party proves that:
-a party to the arbitration agreement, under the law applicable to the agreement, did not have thecapacity to act; or the arbitration agreement was not valid under the law determined asapplicable by the parties or, in the absence of such determination, under the applicable law inthe territory where the award was made;
-the party against whom the award is invoked was not given proper notice of the appointment ofthe arbitrator(s) or of the arbitral proceedings or was otherwise unable to present its case;
-the award deals with an issue not contemplated by or not falling within the terms of thesubmission to arbitration, or it contains decisions on matters beyond the scope of thesubmission to arbitration, provided that if the decisions on matters submitted to arbitration canbe separated from those not submitted, that part of the award which contains decisions onmatters submitted to arbitration may be recognized and enforced;
-the composition of the arbitral tribunal or the arbitral procedure was not in accordance with thelaw applicable to it; or,
-the award has not yet become binding on the parties, or has been set aside or suspended by acompetent authority of the territory in which, or under the law of which, the award was made.
Recognition and enforcement of an arbitral award shall also be refused if the Court finds that:
-the subject matter is not capable of settlement by arbitration under the applicable law in Kosovo; or,
-the recognition or enforcement of the award would be contrary to the public policy (ordre public)of Kosovo.
TYPE OF PROCEEDINGS
PROCEDURE AND ASSUMPTIONS
The costs are transparent and predictable,and the parties make the payment forarbitrators through the PTA (KosovoPermanent Tribunal of Arbitration). Inprinciple, the costs of arbitration are borneby the unsuccessful party. The costs areapportioned if the parties solve the disputeby settlement.
The Law on Arbitration, Law No. 02/L-75 specifies no overall time frame. Due to the differentperiods specified by law (i.e., for the appointment and challenge of arbitrators or thenotification of witnesses), several months can be expected.
Article 21 of the Law on Arbitration states that all statements, documents or other informationsupplied to the arbitral tribunal by one party shall be communicated to all other parties. Also,any expert report or evidentiary document on which the arbitral tribunal may rely in making itsdecision shall be communicated to all parties.
Enforcement of Foreign Arbitral Awards
According to anecdotal evidence, theapproximate duration of proceedings for therecognition of foreign judgments is 3 to 4months.
In cases when such a decision is appealed,the proceedings may take between 6 and 9months.
Enforcement of awards under the NewYork Convention is possible. In such acase, the creditor must provide the courtwith the authenticated original award or aduly certified copy thereof and the originalof the arbitration agreement or a dulycertified copy thereof.
The information in this chapter was correct as of 1 January 2018. If you have any questions about the content of this chapter,
or would like further information about arbitration in Kosovo, please contact