KOSOVO

CONTACT

1. ARBITRATION

According to the Law on Arbitration, enacted on 10 September 2008, arbitration is a recognized instrument for 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 an arbitration agreement between the parties indicating consent to arbitration. The arbitration agreement must be in writing; however, this requirement is deemed to have been satisfied if the arbitration agreement is recorded by means of letters, telefaxes, telegrams or other means of telecommunication or electronic communication etc.

In the event a matter is pending before a court which is the subject of arbitration, the court shall reject the matter if a party invokes the arbitration agreement in its defence. The parties may agree on a sole arbitrator 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, with each 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 to the party if no preliminary order is granted. However, the arbitral tribunal may require any party to provide appropriate security in connection with such preliminary orders.

In arbitrations involving international issues, the arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the rules of private international rights. In all other cases, the arbitral 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 or the 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 arbitral proceedings 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 the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or,

-the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the provisions of the law or a valid arbitration agreement, under the condition that such defect had an 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 submitted to 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 decision shall have the same effect between the parties as a final and binding court decision.

2. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

Foreign awards, rendered outside of Kosovo, can be recognized and become enforceable in Kosovo by making a request for recognition and enforcement to the Basic Court in Prishtina. The request for the recognition 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 language of 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 is invoked, if that party proves that:

-a party to the arbitration agreement, under the law applicable to the agreement, did not have the capacity to act; or the arbitration agreement was not valid under the law determined as applicable by the parties or, in the absence of such determination, under the applicable law in the territory where the award was made;

-the party against whom the award is invoked was not given proper notice of the appointment of the 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 the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that if the decisions on matters submitted to arbitration can be separated from those not submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced;

-the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the law applicable to it; or,

-the award has not yet become binding on the parties, or has been set aside or suspended by a competent 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

PRACTICE TIPS

The costs are transparent and predictable, and the parties make the payment for arbitrators through the PTA (Kosovo Permanent Tribunal of Arbitration). In principle, the costs of arbitration are borne by the unsuccessful party. The costs are apportioned if the parties solve the dispute by settlement.

Approximate Costs

Approximate Duration

Further details and documents

can be downloaded under

www.kosovo-arbitration.com

Document Production

The Law on Arbitration, Law No. 02/L-75 specifies no overall time frame. Due to the different periods specified by law (i.e., for the appointment and challenge of arbitrators or the notification of witnesses), several months can be expected.

Arbitration Proceedings

Article 21 of the Law on Arbitration states that all statements, documents or other information supplied 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 its decision shall be communicated to all parties.

Approximate Costs


Enforcement of Foreign Arbitral Awards

According to anecdotal evidence, the approximate duration of proceedings for the recognition of foreign judgments is 3 to 4 months.

In cases when such a decision is appealed, the proceedings may take between 6 and 9 months.

Approximate Duration

Enforcement of awards under the New York Convention is possible. In such a case, the creditor must provide the court with the authenticated original award or a duly certified copy thereof and the original of the arbitration agreement or a duly certified 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

CONTACT

In cooperation with

Pallaska & Associates L.L.C.,

Pristina, Kosovo

www.pallaska-associates.org

CHRISTIAN MIKOSCH

Partner

Wolf Theiss, Austria (Kosovo Desk)

+43 1 51510 5310

christian.mikosch@wolftheiss.com