Pursuant to Article 18 of the Yugoslav
Chamber of Commerce and Industry Act ("Official Gazette of the
Federal Republic of Yugoslavia" no. 53/92) and Article 24 of the
Statute of the Yugoslav Chamber of Commerce and Industry ("Herald
of the Yugoslav Chamber of Commerce and Industry" no. 1/93, special
issue), the Assembly of the Yugoslav Chamber of Commerce and
Industry at its session held on October 15, 1997 and its session
held on October 31, 2001 (The Articles 3 end 5 of the Rules were
amended at the session held in October 31, 2001), enacted
:
I GENERAL PROVISIONS
1. DEFINITION AND STATUS
Article 1
- The Foreign Trade Court of Arbitration of
the Yugoslav Chamber of Commerce and Industry (hereinafter: the
Arbitration) conducts conciliation and settles disputes arising out
of international business relations when the parties have agreed to
submit their dispute to jurisdiction of the
Arbitration.
- Arbitration is an autonomous institution,
and is independent in its work.
- The seat of the Arbitration is in Belgrade,
Terazije 23.
2. COMPOSITION OF THE ARBITRATION
Article 2
- The Arbitration shall consist of a
President, Presidency and Secretariat.
- Conciliation and settlement of disputes are
conducted by the arbitrators.
3. THE PRESIDENCY AND THE
PRESIDENT
Article 3
- The Presidency of the Arbitration Court
shall comprise the President, two Vice Presidents, the Secretary of
the Arbitration Court, and nine Members (the Broader
Presidency).
- The President, the two Vice Presidents and
the Secretary of the Arbitration Court shall compose the Narrower
Presidency.
- The President, the Vice Presidents and the
Members of the Presidency of the Arbitration Court shall be elected
by the Assembly of the Yugoslav Chamber of Commerce and Industry,
for a term of four years, and may be re-elected. Likewise, they
shall be relieved of duty by the said Assembly.
- The Broader Presidency shall supervise the
application of these Rules, observe and examine the practice of the
settlement of disputes, and carry out other duties within its
jurisdiction under these Rules.
- Prior to the arbitral proceedings the
Narrower Presidency shall establish whether the parties have
concluded a written contract on the Arbitration Court, and shall
participate in the passing of the decision on the jurisdiction of
the Arbitration Court, decide about challenges of arbitrators and
carry out other duties within its jurisdiction under these
Rules.
- The President, and in his absence one of the
Vice Presidents appointed by the President, shall represent the
Arbitration Court and organise its work, chair the sessions of the
Presidency, appoint the Chairman of the Conciliation Commission,
appoint arbitrators and chairmen of arbitral tribunals in the cases
provided for by these Rules, and carry out other duties provided
for by these Rules.
- If the President and the Vice Presidents are
prevented from carrying out their respective duties over a longer
period, the Broader Presidency of the Arbitration Court shall
appoint one of its members as Deputy President or Vice President
for the period during which they are prevented.
- The Narrower Presidency shall be authorised
in urgent cases to carry out certain duties falling within the
jurisdiction of the Broader Presidency, but shall notify the
Broader Presidency about that at the next session."
4. THE SECRETARIAT AND SECRETARY
Article 4
- The Secretariat of the Arbitration shall
carry out technical and administrative work of the
arbitration.
- The Secretary of the Arbitration shall
direct the work of the Secretariat and sign daily correspondence of
the Arbitration.
- The Secretary and the assistants of the
Arbitration are employees of the Yugoslav Chamber of Commerce and
Industry.
- In accordance with the general acts of the
Chamber, an employee of the Chamber is placed in the office of the
Secretary of the Arbitration, after an opinion of the Narrower
Presidency is obtained.
5. ARBITRATORS
Article 5
- The arbitrators may be Yugoslav and foreign
nationals.
- The Arbitration shall have the Panel of
Arbitrators, drawn up by the Assembly of the Yugoslav Chamber of
Commerce and Industry.
- The Panel of Arbitrators shall be drawn up
every four years; the arbitrators already on the panel may be
re-elected.
- The parties may propose an arbitrator from
the Panel of Arbitrators or from outside the Panel. The Presidency
of the Arbitration Court shall decide about such a
proposal.
- Only an arbitrator entered into the Panel of
Arbitrators may be the chairman of an arbitral
tribunal.
- The party that has proposed an arbitrator
who is not on the Panel of Arbitrators shall provide the
Arbitration Court with his name, address and
qualifications.
- Members of the Narrower Presidency shall not
be elected as arbitrators, except in the case provided for by
Article 27 of the Rules. The President and the Vice Presidents of
the Arbitration Court may only be elected as chairmen of arbitral
tribunals, unless they have already participated in decision-making
on the jurisdiction of the Arbitration Court in the respective
dispute. Upon the expiry of their term of office the members of the
Narrower Presidency shall be entered into the Panel of
Arbitrators."
6. SUPERVISION
Article 6
The Yugoslav Chamber of Commerce and Industry
shall provide funds necessary for the work of the Arbitration, and
shall supervise the administrative work and finances of the
Arbitration.
II CONCILIATION
1. MEDIATION BY THE ARBITRATION
Article 7
- In cases which may fall under the jurisdiction of the
Arbitration, each party, regardless of whether the Arbitration's
jurisdiction has been stipulated or not, may apply to the
Arbitration to mediate for the purpose of conciliation in
conformity with these Rules.
- The conciliation proceedings shall be independent of
arbitral proceedings and if the conciliation proceedings fail,
nothing of what has been done or stated orally or in writing during
the conciliation proceedings shall be binding upon the
parties.
- Consent to the conciliation proceedings shall not be
deemed to mean consent to the jurisdiction of the Arbitration in
case the proceedings have failed.
2. REQUEST FOR CONCILIATION
Article 8
- A request for conciliation shall be submitted in writing
to the Secretariat of the Arbitration.
- Such a request may be submitted by one party alone or by
both parties together. The request shall consist of a statement of
the case and the views of the requesting party/parties, and shall
be accompanied by all necessary documents relating to the
dispute.
- A joint submission of such a request, or its submission
by one party and its acceptance by the other party, shall be deemed
to mean acceptance by the parties of the provisions of these Rules
pertaining to the conciliation proceedings.
- Each party may at any time discontinue the conciliation
proceedings and shall in such case bear all the costs of the
conciliation proceedings that have arisen until that
moment.
- The parties may take part in the conciliation proceedings
in person, or through a duly authorized representative.
3. THE ROLE OF THE SECRETARIAT
Article 9
- If a request for institution of conciliation proceedings
is submitted by one party, the Secretariat of the Arbitration shall
notify thereof the other party and shall invite the other party to
state within a specified time-limit whether it accepts the request
for the proceedings, and if it does, to present within the same
time-limit a written statement of the case and its point of view,
and to submit all the relevant documents.
- If the other party fails to respond within the time-limit
fixed, or rejects the request, the Secretariat of the Arbitration
shall notify the requesting party that the conciliation proceedings
cannot take place.
4. CONCILIATION COMMISSION
Article 10
- If the other party has agreed to the request for the
institution of the conciliation proceedings, and also if both
parties have together requested conciliation, a Conciliation
Commission shall be established; it shall consist of a
representative appointed by each party from or outside the Panel
and of a chairman appointed from the Panel of arbitrators by the
President of the Arbitration unless he has been jointly appointed
by the parties.
- Before the commencement of the proceedings before the
Conciliation Commission, the Secretary of the Arbitration shall fix
an advance payment to cover the costs of the conciliation, which
shall be deposited by both parties in equal parts. If the parties
have not deposited the advance payment for the conciliation
proceedings until the commencement of the proceedings before the
Conciliation Commission, the Secretary of the Arbitration shall
invite them to do so within a newly fixed time-limit. If the
parties fail to deposit the advance payment to cover the costs of
conciliation within the newly fixed time-limit, it shall be deemed
that the conciliation has failed.
- If the parties have not appointed their representatives
in the request for the institution of conciliation proceedings
and/or in the reply concerning the acceptance of the request, the
Secretariat of the Arbitration shall invite them to do so
subsequently. If they fail to do so within the newly fixed
time-limit, the member of the Conciliation Commission shall be
appointed from the Panel of arbitrators by the president of the
Arbitration.
- A foreign party may nominate a foreign citizen as its
representative. Travel and other expanses of a foreign member of
the Conciliation Commission shall be paid by the party who has
chosen him.
- The parties may agree to the conciliation proceedings
being conducted by the President of the Arbitration himself, or by
some other member of the Presidency, or by an intermediary
appointed by the President of the Arbitration from the Panel of
Arbitrators.
5. SETTLEMENT
Article 11
- The Conciliation Commission shall examine the requests
made and study the documents submitted, and shall also collect any
information required. If necessary and possible, the Commission may
also hear the parties in person. On the bases of the documents
examined, the Commission shall submit to the parties the terms of
settlement of the dispute, which are not binding on the
parties.
- The results of the conciliation proceedings shall be
noted in a record to be signed by the members of the Conciliation
commission and by the parties.
- The costs of the conciliation proceedings shall be
distributed between the parties by the Conciliation Commission if
the parties have failed to agree as to their participation in the
costs, which shall be noted in the record.
- A settlement shall be deemed to have been concluded when
the parties, after having read the record in which it is noted that
they have reached a settlement, sign this record. A settlement
reached in this way shall not have the force of a final award of
the Arbitration, but only the force of a settlement reached outside
the Arbitration.
- The members of the Conciliation Commission, i.e. the
intermediary may not be appointed as arbitrators or participate in
the proceedings in the same dispute before the
arbitration.
- If the parties are absent, the settlement is served on
them for signature accompanied with a notice that it shall be
deemed that the conciliation has failed if they fail to sign and
return such settlement to the Arbitration within seven days from
the date of receipt.
- If the parties make a joint proposal to this effect, the
settlement reached in the conciliation proceedings may be made in
the form of an arbitral award.
III RESOLUTION OF DISPUTES
1. JURISDICTION OF THE ARBITRATION
1.1. DISPUTES ARISING OUT OF INTERNATIONAL BUSINESS
RELATIONS
Article 12
If the parties have agreed upon or accepted jurisdiction
of the Arbitration, and if at least one of them is a foreign legal
or natural person, the Foreign Trade Court of Arbitration settles
disputes arising out of international business relations, including
but not limited to:
- disputes related to ships and aircraft, that is the
international disputes to which the law of air or water navigation
applies,
- disputes arising out of company articles of association
and other forms of organization in mixed ownership,
- disputes arising out of foreign investment
contracts,
- disputes arising out of concession contracts,
- disputes arising out of contracts on intellectual
property rights (copyright and related rights, industrial property
rights, legal protection of know-how, rights in the field of unfair
competition) and disputes on the protection of company
name,
- and other disputes arising out of international business
relations.
1.2. THE NOTION AND CONCLUSION OF THE ARBITRATION
AGREEMENT
Article 13
- The jurisdiction of the Arbitration may only be
established by an agreement concluded by the parties in writing
(arbitration agreement). Such an agreement may be concluded with
regard to both a particular dispute and to future disputes that
might arise out of a particular legal relationship.
- An agreement on the jurisdiction of the Arbitration
concluded by exchange of letters, telegrams, facsimile, or telexes,
or by concordant statements made by the parties at the oral hearing
and entered into a record, shall also be deemed to be an agreement
in writing.
- An arbitration agreement shall also be deemed to have
been validly concluded when a provision on the jurisdiction of the
Arbitration is contained in general conditions, if these are a
constituent part of the basic legal transaction.
- Parties who have stipulated the jurisdiction of the
Arbitration shall be deemed to have accepted the provisions of
these Rules.
1.3. SEPARABILITY OF THE ARBITRATION AGREEMENT
Article 14
The nullity or non-existence of the main agreement does
not result in the nullity of the arbitration clause.
1.4. ESTABLISHING THE EXISTENCE OF THE ARBITRATION
AGREEMENT
Article 15
- If the defendant contests the existence of an arbitration
agreement or fails to reply to the claim, the case shall be
referred to the Narrower Presidency to establish whether the
documents submitted by the claimant contain an agreement on the
jurisdiction of the Arbitration.
- If the Narrower Presidency establish that the documents
submitted by the claimant contain an agreement on the jurisdiction
of the Arbitration, the proceedings shall be continued even if the
other party refuses to participate in them.
- A decision of the Narrower Presidency as referred to in
the preceding paragraph shall not prejudice a final decision
regarding the existence and validity of the arbitration
agreement.
1.5. ACCEPTANCE OF JURISDICTION
Article 16
If the Narrower Presidency establish that no arbitration
agreement is contained in the documents submitted by the claimant,
the Secretariat of the Arbitration shall request the Defendant to
state, within 30 days from the date of receipt of the request,
whether he accepts the jurisdiction of the Arbitration. If the
defendant fails to reply, or refuses to accept jurisdiction, the
Secretariat of the Arbitration shall notify the claimant that
arbitration cannot take place.
1.6. DECLINING OF JURISDICTION
Article 17
- The Arbitration may decline jurisdiction even if it has
been stipulated, if the arbitration agreement contains provisions
which are inconsistent with the powers of the Arbitration and its
principles, or if the requests and actions of both parties during
the proceedings are such that they make the normal conduct of the
arbitral proceedings impossible.
- A decision to decline jurisdiction before the
establishment of an arbitral tribunal shall be taken by the
Narrower Presidency, and after the establishment of the arbitral
tribunal - by an expanded tribunal in the sense of Article 18 of
these Rules.
1.7. ASCERTAINING JURISDICTION
Article 18
- Arbitral tribunal and sole arbitrators shall at their own
initiative and throughout the proceedings take care to ascertain
whether the dispute falls into jurisdiction of the
Arbitration.
- If a party makes a plea contesting jurisdiction of the
Arbitration, the question of jurisdiction shall be decided by an
expanded tribunal consisting of five members. In addition to the
members of the arbitral tribunal, it shall also include the
President and Vice-President of the Arbitration. If the proceedings
are conducted before a sole arbitrator, the expanded tribunal shall
consist of three members: the sole arbitrator, the President and
the Vice-President of the Arbitration.
- If the President or Vice-President of the Arbitration is
prevented from performing his functions, the President of the
Arbitration shall appoint a deputy from among the members of the
Broader Presidency.
1.8. A PLEA CONTESTING JURISDICTION
Article 19
- Defendant may make a plea contesting jurisdiction in his
answer to the claim or in another pleading before the hearing, and
at the hearing before going into the subject matter of the dispute,
only if he did not submit answer to the claim or any other
pleading.
- Both parties have a right to be heard in the proceedings
concerning a plea contesting jurisdiction and the expanded arbitral
tribunal shall either make a ruling or award on this question,
depending on whether the plea contesting jurisdiction is refused or
accepted.
- If a plea contesting jurisdiction is refused, the single
arbitrator or arbitral tribunal shall proceed to decide the
dispute.
2. INSTITUTION OF ARBITRAL PROCEEDINGS
2.1. SUBMITTING OF THE CLAIM
Article 20
- A dispute begins by submitting of the claim.
- The claim shall be submitted to the Secretariat of the
Arbitration in five copies and shall include:
- The name (company name) of claimant and defendant, their
permanent places of residence, i.e. headquarters,
- Evidence of the existence of an arbitration agreement on
which the jurisdiction of the Foreign Trade Court of Arbitration in
Belgrade is based
- Statement of claims, description of the subject matter of
the dispute and evidence,
- The appointment of arbitrator,
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- The claim and evidence are submitted in the Serbian
language and in the language of the contract that exists between
the parties.
- If there are several defendants in the dispute, the
Secretariat of the Arbitration shall request to have an appropriate
number of copies of the claim and documents submitted to
it.
- The Secretariat of the Arbitration shall serve the claim
with documents on the defendant for answer, specifying the number
of copies in which the answer with documents shall be
submitted.
2.2. INSTITUTION OF THE PROCEEDINGS WITHOUT A PRIOR
CONCILIATION
Article 21
Arbitral proceedings may begin even without a prior
conciliation procedure.
2.3. ANSWER TO THE CLAIM
Article 22
- An answer to the claim must be submitted within 30 days
from the date of receipt of the claim.
- In his answer the defendant shall state his position on
the claim and present his defense together with relevant
documents.
- The Secretariat of the Arbitration shall serve a copy of
the answer to the claim on the claimant.
2.4. COUNTER-CLAIM
Article 23
- The defendant may submit a counter-claim up to the
closing of the main hearing, if the counter-claim arises out of the
same legal relationship.
- The counter-claim shall be served on the other party, who
may within 30 days from the date of receipt thereof submit his
answer.
2.5. JOINING OF CLAIMS AND PROCEEDINGS
Article 24
If the parties have submitted to the Arbitration several
claims against each other which arise out of various legal
relations, the Secretariat of the Arbitration shall try to join the
proceedings concerning these claims and to have them decided by the
same Arbitral tribunal, for the purpose of economy of
proceedings.
2.6. SERVICE OF PROCESS
Article 25
- In the course of the proceedings, summonses and other
written communications shall be served on the parties by mail, by
registered letters against an advise of receipt.
- The service shall be deemed to be properly made even if
the party or its representative refuse to receive the summons and
other written communications.
- If the parties have appointed their representatives, all
summonses and written communications shall be sent to the address
of the representatives.
- Written communications shall be served directly on a
party, if the party has appointed its employee as
representative.
- If the defendant, although duly summoned, fails to reply
to the claim or to the summons, or refuses to take part in the
arbitral proceedings, the proceedings shall be continued in
accordance with the provisions of these Rules.
3. SOLE ARBITRATOR AND ARBITRAL TRIBUNAL
3.1. JURISDICTION
Article 26
- A dispute shall be settled by a sole arbitrator when the
parties have agreed so or when the sum in dispute is below 70,000
US$.
- In all other cases, and especially when the parties have
agreed so, a dispute shall be settled by an arbitral tribunal
consisting of three members.
3.2. SOLE ARBITRATOR
Article 27
- Within 30 days of the answer to the claim the parties may
by agreement choose a sole arbitrator from the Panel of Arbitrators
and notify the Arbitration thereof in writing. President or
Vice-President of the Arbitration may be a sole
arbitrator.
- The parties may by agreement delegate their right to
nominate a sole arbitrator to the President of the
Arbitration.
- If the parties fail to agree on the appointment of a sole
arbitrator within the stated time-limit, a sole arbitrator shall be
appointed by President of the Arbitration.
3.3. ESTABLISHMENT OF THE ARBITRAL TRIBUNAL
Article 28
- In disputes to be decided by an arbitral tribunal, the
claimant shall appoint his arbitrator at the time of submitting his
claim, i.e. at the time of making a payment of a sum to cover the
costs of arbitration, and the defendant in his answer to the
claim.
- If one or both parties fail to appoint their arbitrators
within the time-limits specified in the preceding paragraph, or if
they fail to appoint another arbitrator within 30 days in case the
appointed arbitrator refuses to accept the appointment, or if they
delegate their appointment to the Arbitration, the arbitrators
shall be appointed by the President of the Arbitration within the
following 30 days, and the parties and the appointed arbitrators
shall be notified thereof within 8 days from the
appointment.
- If a party twice in a row appoints a person who refuses
to accept the appointment, the right of appointment shall pass to
the President of the Arbitration.
- Within 30 days from the date of receipt of the report on
their appointment, the arbitrators of the parties shall choose from
the Panel of arbitrators a third arbitrator as a chairman of the
tribunal. If they fail to choose him within this time-limit, the
chairman of the tribunal shall be appointed by the President of the
Arbitration, within the following 30 days.
3.4. COMMON ARBITRATOR
Article 29
If in a dispute there are several claimants and/or
defendants, as parties to the dispute, they shall agree in advance
on the choice of a common arbitrator. If they fail to agree within
the time-limits provided for by these Rules, the arbitrator shall
be appointed by the President of the Arbitration.
3.5. REPLACEMENT OF AN ARBITRATOR
Article 30
- If during his term of office an arbitrator is prevented
from performing his functions, the party who has appointed him
shall appoint another arbitrator within 15 days from the date of
receipt of the Arbitration's request to appoint an
arbitrator.
- If the arbitrator who is prevented from performing his
functions was appointed by the President of the Arbitration, the
President of the Arbitration shall appoint another arbitrator to
replace him within 15 days.
- If the chairman of the arbitral tribunal who is prevented
from performing his functions was appointed by the arbitrators of
the parties, the new chairman of the arbitral tribunal shall be
appointed by the arbitrators of the parties within 30
days.
- If the chairman of the arbitral tribunal who is prevented
from performing his functions was appointed by the President of the
Arbitration, the new chairman of the arbitral tribunal shall be
appointed by the President of the Arbitration within 30
days.
3.6. CHALLENGE OF ARBITRATORS AND EXPERTS
Article 31
- The parties may challenge the arbitrators and experts on
the grounds set out in the Yugoslav Code of Civil Procedure
(hereinafter the Code of Civil Procedure).
- A challenge must be submitted as soon as the party was
informed of the existence of grounds for challenge, and it may be
submitted until making of the award.
- The Narrower Presidency shall decide on the
challenge.
3.7. RESTRICTIONS ON ARBITRATORS
Article 32
- Arbitrators may not state an opinion or advice in writing
or orally, and cannot be representatives in the dispute conducted
before the Arbitration.
- Employees of the parties, members of their governing
bodies and their permanent associates may not be appointed
arbitrators in disputes in which the parties are
involved.
3.8. ARBITRATOR'S ACCEPTANCE
Article 33
- A person appointed to be an arbitrator, shall state in
writing whether he accepts this function, and shall disclose any
circumstances which might give rise to suspicion in respect of his
impartiality or independence.
- Such statement is submitted to the Secretariat and then
served by the Secretariat on the parties.
- If the parties fail to state an objection within 15 days
from the date of receipt of the statement, the arbitrator shall be
deemed appointed.
- If one or both parties state an objection, final decision
on appointment of the arbitrator shall be made by the Narrower
Presidency.
- Nothing in this provision shall affect the provisions on
challenge of an arbitrator.
4. ARBITRAL PROCEEDINGS
4.1. HEARING
Article 34
- Hearing shall be held when the Arbitral tribunal, i.e.
the sole arbitrator consider that the conditions for it have been
met.
- If the arbitrators are satisfied that the written
pleadings and evidence are sufficient to make an award without a
hearing, they shall not schedule a hearing, but shall notify the
parties that the award will be made on the bases of the written
evidence presented, provided that neither party has requested
holding of a hearing.
- If within 15 days from the date of receipt of such a
notification neither party has requested a hearing, the arbitrators
shall make the award without a hearing, on the basis of the
evidence presented.
- A request to make the award without holding a hearing may
also be jointly made by the parties.
- A hearing shall always be held when a party request
so.
- The sole arbitrator or the chairman of the Arbitral
tribunal acting on behalf and in agreement with other arbitrators,
shall schedule a hearing by a written notice.
4.2. THE TIME-LIMITS
Article 35
- The time-limits specified by these Rules may in justified
circumstances be prolonged at the request of the
parties.
- The Arbitral tribunal or the sole arbitrator shall make
sure that the proceedings are not dragged out.
4.3. LOCATION OF THE HEARING
Article 36
- As a rule, hearings shall be held in the seat of the
Arbitration, but at the request of the parties, the Arbitral
tribunal or the sole arbitrator, the President of the Arbitration
may decide that the hearing be held at another
location.
- Hearings in maritime disputes shall, as a rule, be held
in Kotor.
- Hearings shall be held in camera, unless otherwise agreed
by the parties.
- The parties shall attend the hearing in person or through
an authorized representative. The representative of the foreign
party may also be a foreign citizen.
- The parties may be assisted at hearings by their
counsel.
- If one or both parties, although duly summoned, fail to
appear at the hearing, the arbitrators shall, after they establish
that the parties were duly summoned to the hearing and that they
have no justified reasons for absence, have the power to proceed
with the arbitration of the dispute as if the parties were present.
In such cases, an award by default cannot be made.
4.4. THE LANGUAGE
Article 37
1. The arbitral proceedings are conducted in the Serbian
language.
2. The parties may agree that the proceedings be conducted
in some other (foreign) language, provided that they pay all the
additional costs (translation of documents, evidence and
hearings).
3. If the members of the Arbitral tribunal or the sole
arbitrator are foreign citizens appointed by the parties, the party
that appointed the arbitrator shall bear the costs of translation
of the documents, evidence, the hearings and the in camera
deliberations of the Arbitral tribunal.
4. The written correspondence of the Secretariat with the
foreign party that is not represented by a domestic person, and
that clearly has no knowledge of the Serbian language, is conducted
in English or in some other foreign language.
4.5. TAKING OF EVIDENCE
Article 38
1. The arbitrators shall decide on the presentation of
evidence according to the requests of the parties or at their own
initiative. They may order the presentation of evidence in the
course of the whole proceedings.
2. The arbitrators shall weigh the value of the evidence
presented at their own discretion.
3. The parties shall cooperate in the presentation of
evidence and take all measures required from them for the purpose.
Their refusal or omission shall be noted in the record.
4.6. WITNESSES AND EXPERTS
Article 39
1. The evidence is presented in the evidence proceedings
by hearing the witnesses, the parties and experts.
2. The arbitrators may order the parties to bring
witnesses, and may also directly summon witnesses.
3. As a rule, witnesses and experts shall be heard by
arbitral tribunal.
4. The arbitrators may request courts of law to take
individual items of evidence which they themselves are not able to
take.
5. The expert shall be appointed by the Arbitral tribunal
or the sole arbitrator.
4.7. RULINGS CONCERNING THE CONDUCT OF THE
PROCEEDINGS
Article 40
1. In the course of the proceedings the arbitral tribunals
or the sole arbitrator may take rulings on procedural acts which
they deem to be necessary, such as: depositing an advance to cover
the costs of experts and witnesses, securing evidence, joining
cases, and other rulings concerning the conduct of the
proceedings.
2. If the party who has proposed evidence fails to deposit
the requested advance, such evidence shall not be taken.
3. The arbitral tribunals or the sole arbitrator may in
the course of the proceedings order the parties to undertake
certain actions, or to refrain from certain actions which are
relevant to the subject-matter of the dispute.
4.8. THIRD-PARTY INTERVENTION
Article 41
A person that has a legal interest to participate in the
arbitral proceedings may join one of the parties only with consent
of both parties.
4.9. INTERIM AND CONSERVATORY MEASURES
Article 42
The existence of an arbitration agreement stipulating the
jurisdiction of the Arbitration does not affect the right of the
parties to apply to the competent court of law for interim or
conservatory measures. The party shall notify the Secretariat of
the Arbitration without delay of any such application and of the
interim and conservatory measures taken by the judicial authority
in pursuance thereof.
4.10. DURATION OF THE PROCEEDINGS
Article 43
1. As a rule, arbitral proceedings shall be completed
within a year from the date of establishment of the Arbitral
tribunal or appointment of the sole arbitrator, i.e. from the date
of payment of a sum to cover the costs of arbitration.
2. Exceptionally from the provision stated in the
preceding paragraph, the Arbitral tribunal or the sole arbitrator
may decide that the arbitral proceedings be extended after the
expiration of the above time-limit if the needs of obtaining
evidence make this necessary or if the parties make such a
request.
4.11. APPLICATION OF THE CODE OF CIVIL
PROCEDURE
Article 44
The provisions of these Rules shall apply to the
proceedings before the Arbitration. If the Rules do not contain a
relevant provision, the provisions of the Code of Civil Procedure
shall apply if they are in conformity with the competencies and
principles of the arbitral proceedings.
4.12. APPLICATION OF OTHER RULES
Article 45
1. The parties may stipulate that the Rules of Arbitration
of the United Nations Commission on International Trade Law
(UNCITRAL) be applied to the proceedings before the
Arbitration.
2. If the Rules of the Arbitration of the United Nations
Commission on International Trade Law (UNCITRAL) do not contain
relevant provisions, the provisions of these Rules shall
apply.
5. THE AWARD
5.1. APPLICABLE LAW
Article 46
1. The Arbitral tribunal or the sole arbitrator shall
apply the law stipulated by the parties as the substantive law
applicable to their contractual relationship.
2. If the parties have failed to stipulate it, the
arbitral tribunal or the sole arbitrator shall apply the law
indicated by the conflict of laws rules that the Arbitral tribunal
or the sole arbitrator deem to be the most suitable to the case
involved.
3. The arbitral tribunal or the sole arbitrator shall in
all cases make the award in conformity with the provisions of the
contract, and shall take into account trade usages that may be
applicable to the transaction.
4. The award may be made exclusively ex aequo et
bono, only if the parties have given such authorization to the
arbitrators.
5.2. MAKING OF THE AWARD
Article 47
1. The arbitral tribunal or the sole arbitrator may make
an interim award or partial award in the course of the arbitral
proceedings. The final award is made after the arbitral proceedings
have been completed.
2. The award shall state the reasons in terms of the facts
and law and be worded in the manner that enables its enforcement in
the countries in which such enforcement may be
requested.
3. The award of the Arbitral tribunal shall be made by
unanimous or majority vote. The award shall be made at a private
session attended solely by arbitrators and the recording clerk.
When the vote is taken on the award, the chairman of the tribunal
shall be the last to vote. A record of deliberations and voting
shall be made and signed by all the arbitrators.
4. The final award shall be made within 60 days from the
date of the last hearing or of the date on which the last private
session of the Arbitral tribunal was held.
5.3. SETTLEMENT
Article 48
1. If the parties reach a settlement before the Arbitral
tribunal or the sole arbitrator, the settlement shall be recorded
in the form of an arbitral award that states no particular reasons
and the record shall be signed by the arbitrators and the
parties.
2. A settlement shall be deemed to have been reached by
the parties when they sign the record after having read
it.
3. A settlement reached shall have the force of an
arbitral award.
5.4. CONTENT OF THE AWARD
Article 49
1. The arbitral award in writing shall contain an
introduction, award and statement of reasons:
- introduction of the award shall contain the name of the
Arbitration, the names of the chairman and members of the arbitral
tribunal or the name of the sole arbitrator, the parties' names or
company names, occupation and place of residence or headquarters,
the names of the parties' representatives or agents, short
description of the subject matter of the dispute and the date on
which the hearing was closed
- award shall contain the decision of the Arbitration to
grant or refuse particular claims related to the main subject
matter and accessory claims, decision on the existence or
non-existence of the set-off claim, as well as decision on
costs;
- the statement of reasons shall contain the requests of
the parties, chronology of the dispute, statements and allegations
of parties concerning the factual and legal issues that were
considered, evidence presented and taken, the law and rules that
were applied and the reasons for making the award.
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2. The award need not specify the reasons in terms of the
facts or law, if the parties have stated that they do not require
it.
3. The full text of the award may be published only with
consent of the parties. The President of the Arbitration may
authorize the publication of the award in periodicals of
professional and doctrinal character without disclosing the names
of the parties or information that may be damaging to the interests
of the parties.
5.5. SCRUTINY OF THE AWARD
Article 50
1. The Narrower Presidency of the Arbitration shall
scrutinize the award before it is signed. It may advise the
Arbitral tribunal or the sole arbitrator of the formal deficiencies
of the arbitral award, or of the arbitral practice on certain
issues of law.
2. The Narrower Presidency of the Arbitration may draw the
attention of the arbitral tribunal or the sole arbitrator to the
grounds upon which it considers the arbitral award might be set
aside, or upon which its enforcement might be refused.
5.6. SIGNING OF THE AWARD
Article 51
1. The original of the award and all copies shall be
signed by all members of the Arbitral tribunal or the sole
arbitrator respectively.
2. The Award shall be valid even if an arbitrator refuses
to sign the award submitted to him, provided the award has been
signed by the majority of the members of the Arbitral tribunal, and
provided they have noted in the award the refusal of signature by
their own signatures.
3. The arbitrator who refused to sign the award may within
a reasonable period, and especially before the scrutiny of the
award by the Narrower Presidency of the Arbitration has been
performed, submit his dissenting opinion in writing; such
dissenting opinion shall be enclosed to the documents and submitted
to the parties.
4. The Secretariat of the Arbitration shall serve on the
parties the copies of the award signed by the arbitrators or by the
sole arbitrator respectively.
5. The parties may obtain additional copies of the award,
certified true by the Secretary of the Arbitration, but such copies
may not be issued to any third parties.
5.7. CORRECTION OF THE AWARD
Article 52
1. Within 30 days from the date of receipt of the award
the parties may make an application to the Arbitral tribunal or the
sole arbitrator to correct the computational, typographical or
clerical, or any errors of similar nature. Within the same
time-limit, the Arbitral tribunal or the sole arbitrator may
correct such errors on their own initiative.
2. The corrections are made in writing in conformity with
the provisions of Article 49 of these Rules.
3. The correction of the award shall constitute part of
the award.
5.8. THE CONFIRMATION OF ENFORCEABILITY
Article 53
The enforceability of the award shall be confirmed by the
Secretariat of the Arbitration.
The enforceability of the award may be confirmed only upon
expiry of eight days from the date of expiry of the time-limit for
requesting the correction of the award, i.e. not before expiry of
eight days after the date of receipt of the correction of the
award.
5.9. EFFECT AND ENFORCEMENT OF THE AWARD
Article 54
1. The arbitral award shall be final and no appeal may be
filed against it. It shall have the force of a final judgment of a
court of law.
2. By accepting the jurisdiction of the Arbitration, the
parties have undertaken to carry out the resulting
award.
IV COSTS OF THE ARBITRATION
1. THE SCALE OF COSTS AND FEES
Article 55
- At the time of submitting a claim or counter-claim, the
claimant shall deposit with the Secretariat of the Arbitration a
sum of US$ 200.00 to cover the registration fee for work of the
Secretariat, i.e. US$ 100 if the dispute is settled by a sole
arbitrator, as well as the amount of costs of the arbitration as
determined by the President of the Arbitration within the limits of
the prescribed Scale.
- The Scale of arbitration costs is determined by the
Managing Board of the Yugoslav Chamber of Commerce and Industry at
the proposal of the Broader Presidency.
- If it is found in the course of further proceedings that
the initially determined sum is not sufficient to cover the costs
of Arbitration, the President of the Arbitration shall render a
ruling on additional sums to be deposited within the limits of the
Scale.
- If the claimant or counter-claimant fails to pay the
costs within three months from the date of request, it shall be
deemed that the claim or counterclaim has been
withdrawn.
2. ARBITRATORS' EXPANSES
Article 56
- The arbitrator is entitled to compensation of travel and
accommodation expanses if he resides outside the place of
arbitration.
- The expanses of a Yugoslav arbitrator are fixed pursuant
to the regulations presently in force.
- The party that appointed a foreign arbitrator shall
deposit a lump sum for his travel and other expanses and shall bear
the final amount of these expanses to be fixed by the Secretariat
of the Arbitration.
- If the parties appoint a foreign citizen from the Panel
of arbitrators to be the sole arbitrator, or if the arbitrators
appointed by the parties choose a foreign citizen from the Panel of
arbitrators to be the chairman of the Arbitral Tribunal, each party
shall deposit a half of the fixed lump sum for travel and other
expanses of the foreign arbitrator, and shall bear the same
proportion of the final amount of these expanses to be fixed by the
Secretariat of the Arbitration.
3. EXPANSES INCURRED IN CONNECTION WITH PROCEDURAL
ACTS
Article 57
- For expanses incurred in connection with performance of
individual procedural acts, an appropriate sum shall be deposited
in advance by the party that requested them.
- The sum to be deposited shall be determined by a ruling
rendered by the Arbitral tribunal or the sole
arbitrator.
- For expanses caused by procedural acts ordered by the
Arbitral tribunal or the sole arbitrator at their own initiative,
the Arbitral tribunal or the sole arbitrator shall determine by a
ruling which of the parties shall deposit the necessary
sum.
4. HEARING OUTSIDE THE SEAT OF THE ARBITRATION
Article 58
- If the Arbitral tribunal or the sole arbitrator holds a
hearing outside the permanent seat of the Arbitration, the
President of the Arbitration shall specify the additional sum to
cover the costs of holding such a hearing.
- If a hearing is held outside the permanent seat of the
Arbitration at the request of a party, the additional sum shall be
deposited by the party that requested it. If such a hearing is held
at the joint request of the parties, each party shall deposit a
half of the additional sum.
5. WITHDRAWAL OF THE CLAIM
Article 59
- If the claimant withdraws his claim, the following
proportion of the sum deposited under Article 55 shall be returned
to him:
- If he withdraws the claim before the establishment of the
arbitral tribunal - 50%,
- If he withdraws the claim before the hearing was
scheduled - 40%,
- If he withdraws the claim after the hearing was
scheduled, but before it was held - 15%.
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- After the hearing was held, the deposited sum cannot be
returned.
- The sum deposited as a registration fee for the work of
the Secretariat cannot be returned.
6. ARBITRATORS' FEES
Article 60
- The fees of the President, Vice-President and members of
the Presidency of the Arbitration and fees of the arbitrators,
assistants and other participants in the arbitral proceedings,
shall be fixed in accordance with the Scale of fees as determined
by the Managing Board of the Yugoslav Chamber of Commerce and
Industry at the proposal of the Broader Presidency.
- After making of the award, the conclusion of a settlement
or discontinuation of further proceedings, the President of the
Arbitration shall fix the fees of the arbitrators, in accordance
with the Scale of fees.
- Foreign arbitrator is entitled to a fee in foreign
currency.
- The President of the Arbitration shall, in accordance
with the Scale of fees, fix the fees of the members who attend the
sessions of the Narrower and Broader Presidency, and to all other
persons who attend the sessions.
V FINAL PROVISIONS
1. APPLICATION OF THE FORMER RULES
Article 61
A party is entitled to request that the
dispute be resolved under the Rules which were in force on the date
of the conclusion of the arbitration agreement.
2. ABROGATION OF THE FORMER RULES
Article 62
The former Rules of the Foreign Trade court
of Arbitration of the Yugoslav Chamber of Commerce and Industry
("Official Gazette of the Federal Republic of Yugoslavia" no.
87/93) are abrogated by entry into force of the present
Rules.
3. COMING INTO FORCE
Article 63
These Rules shall come into force upon expiry
of 8 days from the date of publication in the "Official Gazette of
the Federal Republic of Yugoslavia".
These Rules were published in the Official
Gazette of the Federal Republic of Yugoslavia No. 52/97 of October
17, 1997 end No. 64/2001 of November 23, 2001
The Scale of Arbitration Costs
Due to its moderate costs, the Foreign Trade
Court of Arbitration is an acceptable manner of resolution of
disputes both for domestic and foreign companies (coming from rich
or poor countries). The Yugoslav party is entitled to pay the costs
in their dinar equivalent under the official rate of
exchange.
The scale of costs is as follows:
The amount in dispute in US$
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The basics of calculation in US$
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up to 5,000
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450
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from 5,000-10,000
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US$ 450USD+7,5% of the amount exceeding US$
5,000
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form 10,000-20,000
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US$ 825 USD+6% of the amount exceeding US$
10,000
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from 20,000-30,000
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US$1,425 USD+4,5% of the amount exceeding US$
20,000
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from 30,000-70,000
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US$ 1,875 USD+3% of the amount exceeding US$
30,000
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from 70,000-100,000
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US$ 3,075 USD+2,25% of the amount exceeding
US$ 70,000
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from 100,000-500,000
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US$ 3,750 USD+1,5% of the amount exceeding
US$ 100,000
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from 500,000-1,000,000
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US$ 9,750 USD+0.75% of the amount exceeding
US$ 500,000
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from 1,000,000-2,000,000
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US$ 13,500 USD+0.405% of the amount exceeding
US$ 1,000,000
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from 2,000,000 -
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US$ 17,550 USD+0.3% of the amount exceeding
US$ 2,000,000
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The administrative costs that have to be paid
by the plaintiff at the time of filing the claim, or counterclaim,
are 200$ if the dispute is settled by an arbitral tribunal, or 100$
if it is settled by a sole arbitrator.