Elma Beganovic
CROATIAN LAW ON ARBITRATION AND UNICITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
Introduction: Free-Market Democracy and International Arbitration Law
In 1991, after a short-war against Serbia, Croatia emerged as an independent nation.[1] Its political leadership and people were eager to leave the communist past behind and integrate themselves into Western Europe. To establish itself as a free market democracy, Croatia had to completely reform its legal system, including its law on international commercial arbitration. International commercial arbitration is particularly important because of Croatia’s lucrative Adriatic Coast; the prospect of economic development along Croatia’s coast quickly proved attractive to foreign investors and international companies.[2] Recognizing its potential as a tourist Mecca, the Croatian government realized that an established and stable legal system would reduce the perceived risk of investing in the country and attract foreign trade and investment.[3] Subsequently, Croatia adopted a single statute that embodied its national arbitration law in 2001.[4]
This paper via a comparison with UNICITRAL Model Law illustrates that while Croatia has implemented a sophisticated arbitration act, its eagerness to implement arbitration law may have compromised the act’s clarity and some basic rights of parties. Reform of Croatia’s 2001 Act is desirable to clarify the jurisdiction of arbitral tribunal; to explain the role of national courts in assisting arbitrations conducted abroad; to allow for service of process to addressees; and to protect against unauthorized arbitration agreements by agents.
This text will: first, discuss the judicial development of international commercial arbitration in Croatia; second, explain the scope of the Croatian law on arbitration; third, analyze Croatia’s definition of arbitration agreement; fourth, examine the ability of an arbitral tribunal to rule on its own jurisdiction; fifth, consider the role of Croatian courts in arbitrations taking place abroad; sixth, scrutinize the Croatian service of process in arbitration; and finally, explore maritime disputes under Croatian Law on Arbitration.
Judicial Development of International Commercial Arbitration in Croatia
To understand the rationale and the goals of the Croatian legislature when it implemented national arbitration law, it is important to shed light on the judicial development and sources of Croatian international commercial arbitration. The dismantled communist system followed by the violent break-up of former Yugoslavia led to far reaching and on-going changes in arbitration law in Croatia. The socialist economic organizations which had once settled commercial disputes were made obsolete;[5] now, to privatize its companies, affirm its international status, and to conduct business with foreign entities, Croatia needed (and enacted) a new arbitration act.
Extensive legal reform of arbitration law was desirable because the country’s golden Adriatic Coast was attracting numerous foreign investors.[6] In fact, “there is hardly any large investment or international project in Croatia that does not have an arbitration clause in the main contract, and therefore it is to be expected that almost all of the large international commercial disputes in Croatia will be decided by arbitration.”[7] To speed up the post-war reconstruction period and bring in new capital through international trade and investments, Croatia was eager to jump on the band wagon and adopt a mirror image legislation of UNICITRAL Model Law on International Commercial Arbitration (hereafter UNICTRAL Model Law).[8]
Comprehensive Reform of Arbitration Law in Croatia
The comprehensive reform period that began to shape the current international and domestic commercial arbitration law of Croatia can be divided into three phases. First, before Croatia gained its independence in 1991, the law of domestic commercial arbitration was divided between the Code of Civil Procedure and the Conflict of Laws Act of former Yugoslavia.[9] For international arbitration, “the only institution in Yugoslavia was the Foreign Trade Arbitration Court (FTAC) in Belgrade [Serbia].”[10] As a result, after Croatia gained its independence, the country did not have an institution that dealt with international arbitration.
Second, after its independence, in the 1990s the Yugoslav Code of Civil Procedure, its Conflict of Laws Act and the 1895 Austrian Zivilprocessordnung were adopted as national legislation to govern international arbitration.[11] In 1991, the Permanent Arbitration Court of the Croatian Chamber of Commerce (hereafter PAC-CCC) evolved from a domestic arbitration center into an international arbitration center by enacting in April 1992 new Rules of International Arbitration (hereafter the Zagreb Rules).[12] The Zagreb Rules were drafted largely after UNICITRAL Arbitration Rules, ICC Rules of International Arbitration, and UNICITRAL Model Law (the 1985 version).[13]
Third, it was not until October 19, 2001, after a five year comprehensive reform, that the Croatian Arbitration Law for domestic and international disputes was codified into a single act-the Law on Arbitration.[14] Five experts (amongst them professors, a national delegate in the UNICITRAL Working Group, and the President of the Permanent Arbitration Court at the Croatian Chamber of Commerce) Dika, Sajko, Sikiric, Triva and Uzelac composed the final draft after extensive criticism and review by UNICITRAL’s Working Group.[15] The latest revision of the arbitration rules of the PAC-CCC was enacted in December 2002, which means that Croatia never adopted the 2006 amendments of UNICITRAL Model Law into its national arbitration law.[16] Although it took five years of comparative studies, analysis and discussion to implement the act, the Croatian legislature eagerness to make itself appealing to foreign investors may have been a likely factor in overlooking the clarity of the language of the act. Moreover, the Croatian legislature does not see the practical differences between the national law and the amended UNICITRAL Model Law as significant and thus does not feel an urgency to change the law.[17] The 1985 UNICITRAL Model Law was amended in 2006 for significant reasons; as a result, the Croatian legislature may also be well-advised to reexamine its 2001 Arbitration Law.
Despite its changing arbitration law, Croatia has had a long history of international arbitration and the implementation of the 2001 Arbitration Law has upped the stakes for many international companies and investors. After the enactment of Zagreb Rules in 1992, the PAC-CCC statistics (see the chart below) demonstrate that about half of the activities of the PAC-CCC relate to international cases.[18]
Croatia
| Year | Domestic | International | Total |
| 1992 | 8 | 7 | 15 |
| 1993 | 14 | 12 | 26 |
| 1994 | 21 | 13 | 34 |
| 1995 | 8 | 10 | 18 |
| 1996 | 15 | 12 | 27 |
| 1997 | 14 | 16 | 30 |
| 1998 | 21 | 8 | 29 |
| 1999 | 22 | 14 | 36 |
| 2000 | 29 | 25 | 34 |
| 2001 | 37 | 10 | 47 |
| 2002 | 22 | 16 | 38 |
| 2003
2004 2005 2006 2007 2008 Total |
23
20 16 25 23 45 343 |
5
7 10 10 9 8 192 |
28
27 26 35 32 53 535 |
Also, the PAC-CCC’s other statistics indicate that “particularly after 2000—the aggregate amount in dispute became fairly significant. The cases submitted to arbitration were quite diverse, from simple sales contracts to complex construction disputes and disputes relating to the process of privatization of state property. The range of foreign parties was also very diverse, including parties form about thirty countries, with prevailing participation of Croatia’s principal trade partners (Italy, Germany, Austria and the post-Yugoslav countries and territories).”[19] The statistics of the PAC-CCC suggest that system that governs the international commercial arbitration law has been stable and fair to foreigners; as a result, Croatia has maintained a proportionate ratio of domestic to international disputes. Also, the fact that the aggregate sum in dispute has increased overtime illustrates that the confidence in the legal system has increased as the international investors take-up larger projects.
The new law’s provisions, unlike the arbitration law of former Yugoslavia, are meant to encourage arbitration and deviate from treating arbitration as a second rate mechanism of dispute resolution. Most importantly, becoming a signatory of multilateral international conventions (e.g. the 1958 New York Convention, the 1961 Geneva Convention, the 1965 Washington Convention, and the 1994 Energy Charter Treaty significantly) and implementing Croatian Law on Arbitration ensures transparency of the national arbitration law and consequently reduces risk of the fear that political instability may hamper foreign investments and trade with Croatia.[20]
The Scope of the Croatian Law on Arbitration
Under One Code: International and Domestic Arbitration
The scope of the Croatian Law on Arbitration is broader than the UNICITRAL Model Law in the sense that one code provides for the monistic approach, i.e. embodies domestic and international arbitration.[21] Article 3(1) of Croatian Law on Arbitration states that the “[p]arties may agree on domestic arbitration for the settlement of disputes regarding rights of which they may freely dispose.”[22] Its Article 3(2) states that “[i]n disputes with an international element, parties may also agree on arbitration outside the territory of the Republic of Croatia, unless it is provided by law that such dispute may be subject only to the jurisdiction of a court in the Republic of Croatia.”[23] In contrast, Article 1 (1) of UNICITRAL Model Law on International Commercial Arbitration says that “[t]his Law applies to international commercial arbitration, subject to any agreement in force between this State and any other State or States.”[24] Having domestic and international arbitration mirror one another, with a few insignificant differences, illustrates the transparency of the system and its willingness grant foreign the same rights and treatment in arbitral proceedings as nationals. Moreover, the scope of Article 3 of Croatian Arbitration Law is greater than that of Article 1 of the Model Law: while the Model Law is only applicable to commercial[25] disputes, Article 3 dictates that the 2001 Act is applicable to all disputes, irrespective of whether they are commercial or not.[26] Including both commercial and non-commercial disputes under one act suggests a national Croatian policy that favors arbitration and believes that a variety of disputes, like patents and trademarks, are capable of settlement by arbitration.
What Does International Mean?
Another significant distinction between the UNCITRAL Model Law and the 2001 Act is that under the 2001 Act, the definition of international and national disputes is different from UNICITRAL Model Law. Croatian Law retained the definitions from the old Yugoslav legislation, which was influenced by Continental Europe.[27] One the one hand, the Croatian definition of international arbitration accords with the unique principle of the seat/residence of the parties, i.e. an international dispute requires that either an individual has a permanent or habitual residence abroad or that an entity is incorporated under foreign law.[28] The exact wording of Article 2 of the Croatian Law states that a “dispute with an international element” is “a dispute in which at least one party is a natural person with domicile or habitual residence abroad, or a legal person established under foreign law.”[29] The definition is important because only international disputes may be arbitrated abroad “unless it is provided by law that such a dispute may be subject only to the jurisdiction of a court in the Republic of Croatia.”[30] For instance, the bankruptcy law allows Croatian judges to refer disputed claims to arbitration upon a request by a creditor to settle a dispute with the debtor so long as the place of arbitration is in Croatia.[31] Hence, the national Bankruptcy Law excludes the possibility of resorting to arbitration outside of Croatia.
On the other hand, the exact wording of the UNICITRAL Model Law says that arbitration is “international if
(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states, or (b) one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration is determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.”[32]
The Model Law’s definition is broader than Croatia’s because Model Law does not require for one party to be from a different country than the other. In fact, both parties could be from the same country yet the arbitration could be international because under the agreement the place where arbitration will be conducted is outside the State; a substantial part of the business between the parties is performed abroad, or the issue in dispute is most closely connected to a foreign State; or the parties explicitly agree that the arbitration agreement covers subjects that relate to more than one country.
UNICITRAL Model Law’s definition of international arbitration encompasses a wider variety of arrangements that could place domestic parties under the umbrella of international arbitration. Croatia’s definition of international may prove to be problematic if both of the parties are nationals of Croatia yet a substantial part of their business is conducted abroad or the disputed issue is connected to a country abroad. The arbitrators in the domestic arbitral proceeding are likely to be more time-consuming and costly in gathering evidence or deposing witnesses who are abroad.
Croatia Adopts Option II of the Arbitration Agreement
One the one hand, the scope of Model Law’s Article 7(2) and Croatia’s Article 6(2) requirement that “[t]he Arbitration agreement shall be in writing” was liberalized to explicitly include a variety of forms of electronic communications and to exclude the requirement of signatures.[33] On the other hand, Croatia’s Article 6 remains conservative by adopting very strict formal writing requirements regarding consumer contracts. Croatia’s approach reflects its decision to deal practically with its national issues by limiting the “in writing” definition when dealing with consumer contracts. However, in all other respects, the Arbitration Agreement Articles of both Model Law and Croatian Law still remain liberal in defining the in writing requirement for arbitration.
In writing: electronic communications and signatures
Although Croatia adopted the 1985 version of UNICITRAL Model Law Article 7(2), its legislature in 2001 implemented a hybrid of the old Model Law Article 7 and of the 2006 amended version. The Croatian legislature used notes from UNICITRAL’s Working Group on Arbitration and Conciliation to draft its own Arbitration Agreement Article.[34] For instance, Article 6(2) of the Croatian Law on Arbitration adopted that “[a]n agreement is in writing if it is contained in documents signed by the parties or in an exchange of letters, telex, faxes, telegraphs or other means of telecommunication that provide a record of the agreement” language, which has been struck by the Model Law’s 2006 Amendments.[35] Unlike the amended Article 7(4) of UNICITRAL Model Law, the national law does not specify that the writing requirement “is met by an electronic communication.”[36] However, its “other means of telecommunication that provide a record of the agreement” language is broad enough to include electronic communication that is “useable for subsequent reference.”[37]
Moreover, unlike Croatia’s Article 6(2) that mentions written agreements “signed by the parties,” UNICITRAL’s Article 7 no longer even mentions signatures.[38] Instead, Article 7(3) has a broad requirement that the arbitration agreement is in writing if its content is “recorded in any form.”[39] A record suggests that the purpose of the text is its utility for subsequent reference. “Recorded in any form” language suggests a shift away from a written form to a focus on its evidentiary function in case a dispute leads to an arbitral proceeding or even litigation. In fact, the word “record” is translated into some languages, including Croatian, as proof.[40] Croatian Law, like the Model Law, seems to also have shifted its focus from the written form to evidentiary proof. Croatia’s Article 6(2) concludes that the arbitration agreement is in writing if it is contained in “other means of telecommunication that provide a record of the agreement, whether signed or not.”[41] The conclusion of Article 6(2) means that parties can conclude an enforceable electronic arbitration agreement made via email exchanges and forgo the requirement handwritten signatures.
Croatia’s 2001 Arbitration Law was sophisticatedly drafted in the sense that it contemplated the changes that the 2006 UNICTRAL Model Law would make with regards to email communication. Both Model Law and Croatian Law have adopted a broad enough definition of the “in writing requirement” to dispense with requisite signatures and accommodate to modern business practices where parties may even agree to arbitrate through a blackberry messenger. The broad record requirement also dodges the question of what constitutes a valid signature, e.g. an X mark, illegible signature, a letterhead, a typed name in an email, etc. Liberalizing the scope of “arbitration agreement shall be in writing” clause makes arbitration agreements easy to enforce and is up-to-speed with modern commercial practices.
Arbitration and Consumer Protection
Since the Croatian Law does not have an extensive legislation regarding consumer protection, the drafters felt that the Arbitration Law should protect consumers from unfair arbitration clauses in light of unequal bargaining power of the parties.[42] In fact, Article 6(6) of Croatian Law on Arbitration provides that notwithstanding any of the aforementioned provisions about the lax requirement for “in writing,” if a dispute arises out of a consumer contract, “the arbitration agreement must be contained in a separate document signed by both parties.”[43] Having the consumer receive a warning in a separate document that refers only to arbitral proceedings and requiring the consumer to sign that document gives actual notice that the consumer may be subjecting herself to binding arbitration and waiving her right to sue. The formal writing requirement, which functions as a warning, protects the consumer from having to discover that the binding arbitration agreement was on a sticker of a packaged product.
Jurisdiction of the Arbitral Tribunal
Who has Jurisdiction on Ruling on the Existence or the Validity of the Arbitration Agreement— Courts or Arbitrators?
Neither Article 42(1) of the Croatian Law on Arbitration nor Article 8(1) of the Model Law specify whether the court should make a preliminary decision on the existence, validity and practicability of the agreement or defer the question to the arbitral tribunal.[44] Under both Model Law’s Article 16(1) and Croatian Law’s Article 15(1), arbitral tribunals have the jurisdiction to decide on questions of the existence, validity and practicability of the agreement.[45] Croatia’s Article 42(1), inspired by the same provision of the Model Law, states
“[i]f the parties have agreed to submit a dispute to arbitration, the court before which the same matter between the same parties was brought shall upon respondent’s objection declare its lack of jurisdiction, annul all actions taken in the proceedings and refuse to rule on the statements of claim, unless it finds that the arbitration agreement is null and void (Article 6), inoperative or incapable of being performed.” [46]
Under Article 42(1), upon request, the court is obliged to declare that it lacks jurisdiction and refer the dispute to an arbitral tribunal unless the court finds that the arbitration agreement is nonexistent, impracticable or invalid. In a similar manner, Article 15(1), inspired by the same provision of Model Law, says “[t]he arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or the validity of the arbitration agreement.”[47] Since both the court and the arbitral tribunal have jurisdiction to rule on the existence, validity and practicability of the arbitration agreement, the unresolved question remains whether the issue of jurisdiction should be determined by the court or the arbitrators.
In the international arena, case law has given oppositional answers by holding that the court has preliminary jurisdiction to decide on the validity of the arbitration agreement and by holding that the court was obliged to defer the question to the arbitral tribunal. One the one hand, for example, in International Civil Aviation Organization (ICAO) v. Tripal Systems Pty Ltd, the Superior Court of Quebec held that the arbitral tribunal alone was competent to decide on its jurisdiction to examine the existence and validity of the arbitration agreement.[48] In another case, the Superior Court of Quebec found that the court has no discretion “but is obliged to refer the matter to arbitration if an objection was raised.”[49] On the other hand, a number of cases reasoned that the imperative language of Model Law’s Article 8(1) “shall refer…unless it finds…” spoke in favor of a preliminary independent court decision.[50]
In Croatia, while no case has yet ruled on whether a court can make an independent decision regarding the validity or existence of the arbitration agreement prior to the arbitral proceeding, the Croatian Code of Civil Procedures specifically provides that a court may do so. “Under the general rules of the Code of Civil Procedure, such an action would be permissible, as a declaratory decision that may be brought before the materially competent court at the place where the defendant has its domicile (for natural persons) or its place of business(for legal persons).”[51] But at the same time, the 2001 Act seems to foreclose this possibility; thus, even though the claimant could use the Code of Civil Procedure to seek a motion for declaratory judgment, the respondent could also use Article 41(1) of Croatian Law on Arbitration to state that “no court shall intervene in the matters governed by this Law, except where it is so provided in this Law.”[52] Therefore, in Croatia the question whether it is the courts or the arbitral tribunals that have jurisdiction to determine whether the arbitration agreement is valid or invalid is unclear. Croatia’s legislature would be wise not to sit idle but to reexamine Article 15(1) and 42(1) and clarify the role of the courts and the role of arbitrators/arbitral tribunals when it comes to determining the validity or existence of an arbitration agreement.
Preliminary Decision or Part of the Final Award
Both Model Law and Croatian Law on Arbitration have discretion to decide whether the tribunals will rule on the question of arbitral tribunal’s jurisdiction in a separate ruling or in the final award.[53] The arbitral tribunal’s power to rule on the question about its own jurisdiction is important because claims filed with a court to establish lack of jurisdiction of the tribunal are not admissible prior to the tribunals’ ruling on its own jurisdiction. Article 16(3) of Model Law and Article 17(3) of Croatian Law both state that “the arbitral tribunal may rule on a plea” that the arbitral tribunal does not have jurisdiction “either as a preliminary question or in an award on the merits.”[54]
Since the Model Law is unclear, Croatian jurisprudence has clarified that the time period to challenge the arbitral tribunal’s decision—whether or not it has jurisdiction—is different for a preliminary question than a plea decided with an award on the merits. Article 17(3) specifies that
“if the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, [the Commercial Court in Zagreb]…to decide the matter.” [55]
On the one hand, the clause is clear in case the tribunal rules as a preliminary question that any party has thirty days after receiving the notice to request a competent court to review the tribunal’s decision. On the other hand, the clause is not clear when a party may request court review in the event that the tribunal rules on the jurisdictional question in the award. Consequently, Croatian jurisprudence has stated that “if arbitrators have postponed the decision on jurisdiction until the final award,” the tribunal’s decision may only be challenged in the procedure for setting aside the award or procedure for recognition and enforcement and not in prior judicial proceedings.[56] The rationale is that the court is not able to review the decision on jurisdiction until the tribunal has issued a final award because Article 41(1) states that “no court shall intervene in maters governed by this law, except where it is so provided in this Law.”[57] It also makes sense for the court not to be able to interrupt the arbitral proceedings until the tribunal issues a final award. However, having the legislature clarify the provision is more practical and less costly than having foreigners research Croatian jurisprudence or incur additional costs in hiring Croatian local counsel.
Review by National Courts and Other Authority of Tribunal’s Jurisdiction
If an arbitrator or a tribunal decides to respond to the plea on lack of jurisdiction in a preliminary question, the ruling in many countries is subject to review by a state court.[58] However, in Croatia, the state court (here the Commercial Court in Zagreb) is not the only forum which has been granted the power to review the arbitral tribunal’s decision in a preliminary question. The Croatian Courts have put a gloss on its Article 15(3) by stating that parties may also agree to transfer the authority to review the tribunal’s decision of the preliminary question to some other authority like a president of an arbitral institution.[59] The opportunity by the parties to choose between arbitration rules of an arbitration institution and state court to review gives the parties an option to escape the overburdened state courts and maintain their goal of efficient resolution of disputes. By allowing review by authority other than the state court, Croatian Arbitration Law has provided more of an arbitration friendly forum than other model states that have adopted a mirror image of UNICTIRAL’s Article 16(3) and Article 6.
Reviewing the Tribunal’s Decision Not to Arbitrate due to Lack of Jurisdiction
When the Tribunal rules that it lacks jurisdiction to review the dispute at hand, both the Model Law and the Croatian Law on Arbitration are ambiguous whether the decision of the tribunal can be challenged. Article 34(2) of Croatian Law states that
“[a]n arbitral award may be set aside” by the Commercial Court of Zagreb “only if the party making the application furnishes proof that there was no agreement to arbitrate…or such an agreement is not valid.”[60]
Similarly, Model Law’s Article 34(2)(a)(i) states that
“[a]n arbitral award may be set aside by the court specified in Article 6 only if (a) the party making the application furnishes the proof that (i)…the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, under the law of this state…”[61]
Typically Croatia’s Article 34(2) and Model Law’s Article 34(2)(a)(1) are used to state a claim by the party requesting to set aside the award that the Tribunal did not have jurisdiction because there was either no agreement to arbitrate or the agreement to arbitrate is invalid.[62] However, the problem arises when the Arbitral Tribunal actually rules that it does not have jurisdiction to arbitrate. Some Model Law countries, like Germany, have held that the reasons set forth in the application for setting aside an award cannot be used to strike the tribunal’s decision that it lacks jurisdiction.[63] Specifically, the Highest Regional Court of Hamburg and the Federal Supreme Court of Germany reasoned that its decision does not violate due process because declining to arbitrate based on lack of jurisdiction opens the door for “legal action in a court procedure.” [64] Other Model Law countries, like Croatia, have held that since there is no remedy under its Article 36 for setting aside an award, a court has to strictly scrutinize the decision due to its fear of denial of due process.[65] In a particular case, the Croatian Constitutional Court annulled the arbitral decision because of its insufficient explanation and sent the dispute back to arbitrators.[66] However, allowing the court to review the tribunal’s decision that it lack jurisdiction to arbitrate opens the door for a court’s ability to override the tribunal’s decision on lack of jurisdiction and essentially force the tribunal to arbitrate. Even though Croatia has a policy of favoring arbitration, its courts should step on the toes of arbitrators or tribunals; instead, the national courts should take the German approach of litigating the case when the tribunal pronounces its lack of jurisdiction of the dispute.
Court Review under Setting Aside and Refusing Enforcement and Recognition of the Award
If the arbitrators decide that they have jurisdiction, Model Law and Croatian Law provide two grounds under which a party can attack their decision: in the setting aside proceedings and recognition and enforcement proceedings. To simplify the similar provisions of Model Law and Croatian Law Articles here is practical chart of the relevant text:
| Croatian Law on Arbitration | UNICITIRAL Model Law | ||||
| Setting Aside the Award | Article 36
(2) 1) “arbitral award may be set aside [by Commercial Court of Zagreb] …only if…there was agreement to arbitrate or such an agreement was not valid…” (2) 2) “arbitral award may be set aside [by Commercial Court of Zagreb]…only if…the court finds…that the subject-matter of dispute is not capable of settlement by arbitration…or the award is in conflict with the public policy…”[67] |
Article 34
(2)(a)(i) “An arbitral award may be set aside by the court specified by Article 6 [state court/s or other competent authority] only if the party …furnishes proof that …the arbitration agreement…is not valid…” (2)(a)(iii) “An arbitral award may be set aside by the court specified in Article 6 [state court/s or other competent authority] only if the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or … matters beyond the scope of the submission to arbitration…”[68] |
|||
| Refusing Recognition and Enforcement | Article 40
40(1) “foreign award shall be recognized as binding and shall be enforced…unless the court establishes the existence of ground referred to in Article 36, pagraph2, subparagraph 1…” [i.e. that there was no agreement to arbitrate..or such agreement was not valid] 40(2) “Recognition and enforcement of a foreign award shall be refused if the court finds that the subject-matter of dispute is not capable of settlement by arbitration…[or] the recognition or enforcement …would be contrary to the public policy…”[69] |
Article 36
(1)(a)(i) “Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only …if…the arbitration agreement…is not valid…” (1)(a)(iii) “Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only …if…the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or…matters beyond the scope of the submission to arbitration…”[70] |
Model Law and Croatia’s Law on Arbitration seem to mirror each other for setting forth the ground for an attack on the Tribunal’s affirmation of its own jurisdiction in the award on the merits. The court review does not serve to reopen the case, i.e. the court cannot set aside the award based on the tribunal’s factual errors or errors in its application of substantive law.[71] By relying on setting aside and recognition and enforcement provisions, the court can only use grounds like an invalid arbitration agreement, a dispute not contemplated by arbitration, or decision on matters beyond the scope of arbitration to strike the arbitrators’ decision that they had jurisdiction.
After the arbitral proceedings, having the court reexamine the dispute to either set aside the award or refuse enforcement and recognition is inefficient and costly to the parties. Instead, Model Law’s Article 16(3) and Croatia’s Article 17(3) should be amended to state that the arbitrators must rule on a plea that the tribunal does not have jurisdiction as a preliminary question rather in an award on the merits in order to prevent wasting time and incurring costs.
Role of the Croatian Courts in Arbitration Taking Place Abroad
The Root of the Problem
The article that defines the scope of Croatian Law on Arbitration is vague because assistance of the Croatian judiciary in arbitration taking place abroad is only mentioned with respect to recognition and enforcement of arbitral awards. Unlike UNICITRAL Model Law’s Article 1 whose scope of application is more elaborate, Croatia’s Article 1(1) states:
“[t]his Law governs:
1) domestic arbitration,
2) recognition and enforcement of arbitral awards, and
3) court jurisdiction and procedure regarding arbitration from subparagraph 1 of this Article and in other cases provided by this Law.”[72]
This Article indicates that Arbitration Law in Croatia governs domestic disputes, i.e. “arbitration that takes place in the territory of Croatia,” and court proceedings concerning arbitration taking place in Croatia.[73] Additionally, the broad language “and in other cases provided by this Law” gives no guidance on defining the role of Croatian courts in arbitration taking place abroad.[74]
The wording suggests that the drafters intended to limit the national court’s involvement with arbitration taking place abroad to recognition and enforcement of arbitral awards. It is unlikely that the legislators meant for Croatian courts not take action in staying court proceedings and referring the cases to arbitration under Article 42(1).[75] Moreover, the intention of making the application so narrow in scope seems unlikely given Croatia’s desire to accommodate the business community via its attractive arbitration forum. Foreign companies conducting trade in Croatia and investors seeking returns are likely to seek an arbitration forum whose judiciary exercises supportive functions in arbitration. Given the contrary goals of the drafters than the wording suggest, Article 1 is ripe for change in order to clarify the role of Croatian courts in arbitrations outside of Croatia.
Gathering Evidence
While UNICITRAL Model Law is clear that court assistance in taking evidence is only provided for arbitration taking place in the model state, there is no such clear answer under the Croatian Law on Arbitration. Article 45(1) Croatian Law on Arbitration gives the arbitral tribunal or a party, with permission from the tribunal, the right to request assistance “from a competent court” in gathering of evidence if the tribunal itself cannot gather the evidence.[76] The “competent court” language makes it unclear whether, for instance, a Croatian court could provide assistance to arbitrators in Switzerland that request from the Commercial Court of Zagreb to obtain business records of a Croatian company. The language of Article 1 that “this law governs: 1) domestic arbitration, 2) recognition and enforcement of arbitral awards…” suggests that a Croatian court cannot provide assistance with the business records to the tribunal in Switzerland but could provide assistance to a tribunal in Croatia.[77] It would be wise for the legislators to reexamine and clarify the meaning of this provision to reaffirm its empathic policy that favors arbitration of disputes in international commerce, especially in light of Croatia’s efforts to develop its markets via international trade.
There are statutes in other countries like England and Sweden that support court assistance in taking evidence when the arbitration place is abroad.[78] For instance, the scope of 1996 Arbitration Law of England covers court assistance in gathering evidence when the seat of the arbitration is abroad.[79] Specifically, under the Scope of Application Provision, Section 2(3) says that
“[t]he powers conferred by the following sections apply even if the seat of arbitration is outside England and Wales and Northern Ireland or no seat has been designated or determined–
(a)…
(b) section 44 (court powers exercisable in support of arbitral proceeding);
but the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of arbitration is outside England and Wales and Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.”[80]
Legislators should adopt a similar provision to clarify the roles of Croatian courts in arbitration that takes place abroad. Even for the skeptics of adopting such a provision, it is important to point out that there is still discretion for a court to refuse to provide assistance to a tribunal abroad if the court thinks “it inappropriate.” Consequently, the provision provides a cushion for the Croatian courts to balk at providing evidence to the arbitral proceedings abroad. Court assistance in taking evidence suggests to the business community that Croatian courts are supportive of competent arbitral proceedings abroad and favor arbitral dispute resolution in the field of international commerce.
Service of Process in Arbitration
As discussed in the introductory paragraph, Croatia was eager to move on after the 1990s war in former Yugoslavia and its secession. In its rapid post-war reconstruction period and its transition to a free-market economy, Croatia was eager to jump on the bandwagon with its other Eastern European neighbors to join the European Union. Understanding this backdrop, it sheds lights on its judicial development process, including reform of its arbitration laws. “Arbitration in Croatia required comprehensive regulation to comply with global standards, which would facilitate, we dare to say even encourage, cooperation with other states. This particularly relates to developed countries as potential investors in Croatian economy, which expect from the country they invest in, a modern regulation of arbitration [that] shall ensure complete and efficient protection of their rights and interests.”[81] Some radical departures were made from the old Yugoslav law on arbitration like service of process, which may be at odds with right to be heard under Croatia’s Article 354(2)(7) Code of Civil Procedure (hereafter CCP).[82]
Reasonable Inquiry
Before analyzing and comparing the CCP to Croatia’s Law on Arbitration, it is important to point out the language that the Model Law used that safeguard due process while the text of the Croatian Law on Arbitration did not. The Model Law places a higher standard than Croatian Law by requiring that the addressor make a “reasonable inquiry” to find the current “place of business, habitual residence or mailing address” before sending the communication to the last known address of the addressee.[83] The relevant portion of the text of Model Law and Croatian Law on Arbitration states:
| Receipt of Written Communications | ||||
| Croatian Law on Arbitration Article 4
(3) “If none of the addresses referred to in paragraph 2 [“address at which the addressee regularly receives mail, address of the seat or the branch office of the addressee, his habitual residence, or the address referred to in the main contract or in the arbitration agreement”], a written communication shall be deemed to have been served on the day when its delivery has been attempted to the last known address…”[84] |
UNICITRAL Model Law Article 3
(1) “if none of these [the address of his place of business, habitual residence or mailing address] can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address… “[85] |
Since the addressor is not required to make a reasonable inquiry regarding the current address of the addressee, this suggests that the addressee should make an effort to ensure that its contact information is up-to-date at all times. “The written communication shall be deemed to have been served on the day when its delivery has been attempted to the last known address.”[86] This may produce an odd result if the addressee is a large or even mid-sized company whose expansion and relocation into a new building is published on the front page of the newspapers and the addressor does take note and mails the written communication to its previous address. For example, by reading the newspapers, the executives and directors of the addressor have actual knowledge of the move but fail to inform any assistant to make the change in its computer database. The executive and directors are off hook for being careless— not having to make any effort to correct the address—and the addressee is deemed to have been served on the date of the attempted effort to send the notice by the addressor.
Model Law’s language of making a “reasonable inquiry” before sending the written communication to the last known address suggests that the Model Law is more protective of the addressee in case its change of address is blatant or may be discovered after a couple entries into Google.
Croatia’s nonexistent obligation to a reasonable inquiry to locate the addresee’s current address is at odds with the principle of the right to be heard. The requirement of service of process stems from CCP’s Article 354(2)(7) right to be heard, which is a priority in procedural rules[87] If the addressee does not have knowledge of the claim of the addressor, the addressee’s right to respond and be heard by a competent authority is jeopardized. In fact, not only does CCP’s Article 354(2)(7) set grounds to challenge the judgment, the violation of the right to be heard is also listed as a ground to set aside the award under Croatian Law on Arbitration 36(2). Article 36(2) in relevant portion states that “the party making the application for setting aside was note given proper notice of the commencement of the arbitral proceedings…”[88]
Despite its potential violation of the right of service of process, there have been some defenders of leaving Croatia’s Article 4 intact. For instance, an author on Article 4’s Receipt of Written Communication argues that
“the principle of efficient conduct of proceedings is the main reason why the parties choose to stipulate arbitration and for that reason the parties are ready to waive a series of favorable provisions applied before courts of law…the consequences for the presumption of deliver are positive for the course of the proceedings since they facilitate and speed up the course of terms and eliminate time-consuming delivery attempts which would ultimately fail…the negative consequences…for the party for whom the delivery is deemed performed …are the result of its passive behavior and negligence in protection of its rights and interests. ”[89]
However, the opposite of efficiency is achieved when the parties to the arbitration agreement have to re-launch the dispute process through the courts because of the violation of the fundamental right to be heard. Moreover, the right to service of process and the right to be heard is more than just a “favorable provision.” The aforementioned rights are fundamental for a party to gain knowledge of the claim, to respond and the response to be heard by a competent authority. Maintaining these core rights far outweighs the desire to avoid a time-consuming task of making a reasonable inquiry of finding the addressee’s current address. The addressee’s passive behavior of failing to update its address should not be countered by releasing the addressor of any obligation whatsoever to make a reasonable inquiry. Therefore, since litigating the dispute on the grounds of the violation of service of process and the right to be heard is contrary to arbitration’s goal of avoiding the often overburdened and slow state court system, Croatia’s Article 4(2) provision is ripe for change. Making a slim effort by amending and inserting “the reasonable inquiry” language into its Article 4 would also support Croatia’s desire to incentivize foreign investments and trade.
Maritime Disputes under the Croatian Law on Arbitration
Unlike Croatian Law, the UNCITRAL Model Law’s Article 7 does[not!] make any reference to a conclusion of an arbitration agreement by a bill of lading. Having a vast majority of its land mass on the Adriatic Coast, the geographical location of Croatia justifies its implementation of a provision regarding a bill of lading as an arbitration agreement. Interestingly, the copious history of arbitration in maritime disputes served as a strong pillar to uphold the newly established Croatian Law on Arbitration. [90] In addition to using its maritime dispute inheritance, Croatia was able to shape its laws by taking into account the problem areas of international maritime arbitration from other countries. Consequently, the Croatian drafters implemented specific provisions to smooth over the often encountered wrinkles of international maritime arbitration. In particular, there are two major legal uncertainties: the interpretation by arbitral tribunal of the incorporative clause into the bill of lading and the authority of an agent with the power of attorney to conclude a maritime arbitration agreement.
Insertion of the Incorporative Clause into the Bill of Lading
The core problem arising before many arbitral tribunals was the validity of the arbitration clause that was a part of the bill of lading because of the insertion of the usually broadly worded incorporative clause.[91] Croatian Law on Arbitration seems to have resolved the vagaries of the incorporative clause language by providing that an arbitration agreement can be concluded through a bill of lading so long as the bill of lading expressly references to an arbitration clause in a charter party.[92]
To understand the interaction between international maritime law and arbitration, this paragraph will briefly discuss some of the basic definitions and concepts of maritime law. A bill of lading is a unilateral obligation issued by a ship-operator to a charter (or a third party) that states that the ship-operator acknowledges that certain goods have been received for conveyance to a named place and to a named party.[93] The bill of lading is not a contract itself but a proof of the existence of the main contract like a charter party.[94]
There are two main problems that jeopardize the enforcement of an arbitration agreement in a charter party. First, the problem arises when the ship-operator introduces into the bill of lading conditions that are different from the conditions in the charter party and the charter does not sign the bill of lading.[95] The bill of lading could contain its own specific conditions while the incorporative clause incorporates the conditions of the charter party. The other problem occurs when the charterer hands over the bill of lading to a third party, usually called a receiver, and the receiver is not a direct party to the charter party. It is a disputed legal issue whether the receiver is bound by the arbitration agreement of the charter party especially considering the vaguely worded incorporative clause. The incorporative clause would usually state “all terms, conditions, liberties, and exceptions of the charter party are herewith incorporated.”[96] The holder of the bill of lading did not sign or consent to the charter party and its arbitration clause.
While Article 1009 of the Croatian Maritime Code gives exclusive jurisdiction to Croatian court of specific cases (e.g. disputes of salvage rewards), the Code leaves room for other maritime disputes to be resolved through arbitration.[97] Interestingly, an arbitral tribunal can make a deduction from the Croatian Maritime Code that a third party is bound by the charter party arbitration clause if the bill of lading spells out as a condition the arbitration clause of the charter party. Specifically, in relevant part Article 531 states:
“[t]he verbal terms of a contract of carriage not inserted in the bill of lading shall not be binding for an authorized holder of the bill of lading who is neither the charterer nor the shipper even in cases when the said terms are expressly referred to in the bill of lading.”[98]
Nonetheless to avoid litigation, the drafters of the Croatian Law on Arbitration chose the belt and suspender tactic by stating that an arbitration agreement can be concluded “by an issuance of a bill of lading, if the bill of lading contains an express reference to an arbitration clause in a charter party.” [99] This provision seems to suggest so long as the third party is put on a constructive notice about the existence of an arbitration clause, the arbitration clause binds the third party even though the third party is not a direct party to the charter agreement. Putting the third party on constructive notice indirectly instructs the third party to review the exact wording of the arbitration clause in the charter party. The third party may well desire to ask the charterer for the charter party to understand the scope of the arbitration clause, i.e. what type of maritime disputes are arbitrable. Providing protections for holders of bill of lading by putting them on notice about an arbitration agreement illustrates the sophistication of certain provisions of Croatian Arbitration Law. Here, the legislature carefully drafted the provision by taking into account problem areas of maritime international arbitration and amending them through carefully chosen language of the Arbitration Agreement Article.
The Ability of the Maritime Agent to Conclude an Arbitration Agreement
Unlike the UNICITRAL Model Law, Croatian Law on Arbitration states that for an arbitration agreement to be valid when concluded by an agent with a power of attorney certain conditions must be met. Specifically, Article 7 states “[i]f the validity of power of attorney is governed by Croatian law, the authority to conclude the main contract implies an authority to conclude an arbitration agreement.”[100] Article 7 seems to have been inserted largely due to the maritime’s common practice of a charterer being represented by an agent, usually an attorney, when negotiating contracts with a carrier.
In fact, the Maritime Code states the function of a maritime agent, what type of services the agent provides and the agent’s scope of authority. First, Article 674 states that the under a contract maritime agent “undertakes to perform…services…of representation.”[101] Second, Article 675 states that “Maritime Agency Services are services relating to…ships and their employment especially for…concluding contracts of employment of ships …”[102] Third, the Maritime Code limits the scope by stating that “the power of attorney may be either general or special.”[103] However, notwithstanding maritime law, the core rights and obligations of an agent are governed by Croatia’s Law on Obligation, which requires for an agent to have special authorization to conclude an arbitration agreement.[104]
To lift the burden and bypass the tediousness of having the principal explicitly grant the special power of attorney to an agent to conclude an arbitration agreement, the legislators adopted Article 8. The article strikes the need for explicit authority; instead, it incorporates an implied authority to conclude an arbitration agreement so long as the agent has the power to negotiate the main contract.[105] Loosening restrictions for an agent to conclude an arbitration agreement seems to be a part of an ongoing effort to make Croatia an attractive arbitration forum by adapting arbitration legislation to better meet the needs of the business community.
However, while speed and efficiency are often sought after in business transactions, safeguards to prevent unauthorized decisions of the agent should not be compromised. The burden on both sides in negotiations can be minimal because to obtain authorization all the agent may have to do is make a quick phone call. On the contrary, the repercussions for a principal would turn out to be larger if the agent binds the principal to arbitrate a dispute in another country. Meeting the needs of the business community and creating an attractive arbitration forum should carefully be weighed against the potentially negative consequences like binding a principal to an arbitration clause it did not contemplate.
Closing Remarks on Problem Areas
While some provisions are ripe for amendment due to ambiguity and compromising the rights of parties, others are refined and clear. The provisions that are ripe for amendment are jurisdiction of arbitral tribunal, the role of national courts in supervising arbitration, receipt of written communication and power of attorney for the conclusion of an arbitration agreement. Others that are refined and clear are the bill of lading as an arbitration agreement, review by both the state court and arbitral institutions of the tribunal’s jurisdiction, and separate arbitration agreements for consumer contracts. This paper does not suggest that certain provisions should be completely dismantled but rather that subtle revisions, like insertion of phrases, should be made to clarify articles. Moreover, this paper also advocates that establishing an arbitration friendly forum should not compromise certain protections like the right to service of process and protecting the principal from unexpected decisions by the agent. Croatia’s Law on Arbitration is especially important in light of its enormous potential to serve as exemplary arbitration law for the rest of the young countries of former Yugoslavia. Reformation of international commercial arbitration law in former Yugoslavia serves as one major piece of the puzzle to form a stable free-market democracy.
[1] Alan Uzelac, Croatia, Int’l. Handbook on Commercial. Arb. Supplement. 57, 1, 4, (Jan Paulsson ed. 2009).
[2] Pamela Ballinger, Selling Croatia or Selling Out Croatia? Tourism, Privatization, and Coastal Development Issues in a “New” Democracy 7 (2006), http://www.ucis.pitt.edu/nceeer/2003-817-01f-Ballinger.pdf.
[3] Patrick Juillard, Bilateral Investment Treaties in Context of Investment Law 2 (2001), http://www.oecd.org/dataoecd/44/41/1894794.pdf.
[4] Elizabeth Shackelford, Arbitration Law in Eastern Europe 178 (2006), http://www.kentlaw.edu/jicl/articles/spring2007/Shackelford_Arbitration_Final.pdf.
[5] Sinisa Rodin, Requirements of EU Membership and Legal Reform in Croatia 90 (2002), hrcak.srce.hr/file/38337.
[6] Ballinger, supra note 2, at 7.
[7] Alan Uzelac, Croatia, 1 World Arb. Rep., 1, 6 (2010).
[8] Id.
[9] Uzelac, supra note 1, at 4.
[10] Uzelac, supra note 1, at 5.
[11] Uzelac, supra note 1, at 2.
[12] Alan Uzelac, International Commercial Arbitration in Croatia 1991-1998: A Log of the Activities of the Permanent Arbitration Court at the Croatian Chamber of Commerce, 5 Croat. Arb. Yearbook. 111, 114 (1998).
[13] Id.
[14] Siniša Triva & Alan Uzelac, Hrvatsko Arbitražno Pravo: Komentar Zakona o arbitraži i drugi izvog hrvatskog arbitražnog prava [Croatian Law on Arbitration: Commentary about the Law on arbitration and other sources of Croatian arbitration law], xxxi, (Narodne Novine Zagreb, travanj) (2007).
[15] Siniša Triva, New Arbitral Leiglsation: Croatian Arbitration Law-Final Proposal of the New Croatian Arbiration Law (Draft Three), 5 Croat. Arb. Yearbook 10, 11 (1998).
[16] Uzelac, supra note 7, at 6.
[17] Uzelac, supra note 7, at 2.
[18] Uzelac, supra note 7, at 6.
[19] Uzelac, supra note 7, at 5.
[20] http://cms-arbitration.com/Home/ (follow “Arbitration Per Country”; then follow “Croatia”; then follow “Arbitrations Conventions: Ratifications Accessions and Successions”).
[21] Triva, supra note 14, at 11.
[22] Hrvatsko Arbitražno Pravo [Croatian Law on Arbitration], Oct. 11, 2001, Official Gazette 88/2001, §3, ¶ 1.
[23] Id.
[24] UNICITRAL Model Law on Int.’l Commercial Arb. §1(1) (1985)(amended 2006).
[25] There is no definition of “commercial” in the 1985 UNCITRAL Model Law. A note accompanying Article 1(1) of the 1985 UNCITRAL Model Law states, however, states that the term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; commercial representation or agency; factoring; leasing; construction of works; consulting; Engineering; Licensing; Investment; Financing; Banking; Insurance; Exploitation agreement or concession; Joint venture and other forms of industrial or business co-operation; Carriage of goods or passengers by air, sea, rail or road. Id. at 1.
[26] Uzelac, supra note 12, at 16.
[27] Uzelac, supra note 1, at 2.
[28] Uzelac, supra note 1, at 3.
[29] Uzelac, supra note 1, at 1.
[30] Uzelac, supra note 1, at 16.
[31] Stečajni zakon [SZ] [Bankruptcy Law] Aug. 20, 1996, Official Gazette 44/96, 29/99, 129/00, 123/03, 82/06, 116/10, §178(6)-(10).
[32] UNICITRAL Model Law, supra note 23 at 2.
[33] UNICITRAL Model Law, supra note 23 at 4; see also Croatian Law on Arbitration, supra note 21 at 3.
[34] Alan Uzleac, Written Form of the Arbitration Agreement: Towards Revision of UNICITRAL Model Law, 8 Croat. Arb. Yearbook 83, 100 (2005).
[35] Croatian Law on Arbitration, supra note 21, at 3.
[36] UNICITRAL Model Law, supra note 23, at 4.
[37] Croatian Law on Arbitration, supra note 21, at 3.
[38] Croatian Law on Arbitration, supra note 21, at 3; see also UNICITRAL Model Law on Arbitration, supra note 23, at 4.
[39] UNICITRAL Model Law, supra note 23, at 4.
[40] Uzelac, supra note 1, at 102.
[41] Croatian Law on Arbitration, supra note 21, at 3 (emphasis added).
[42] Uzelac, supra note 1, at 13.
[43] Croatian Law on Arbitration, supra note 21, at 3.
[44] Croatian Law on Arbitration, supra note 21 at 14; see also UNICITRAL Model Law, supra note 23, at 5.
[45] Croatian Law on Arbitration, supra note 21 at 6; see also UNICITRAL Model Law, supra note 23 at 6.
[46] Croatian Law on Arbitration, supra note 21, at 16 (emphasis added).
[47] Croatian Law on Arbitration, supra note 21, at 6 (emphasis added).
[48] Alan Uzelac, Jurisdiction of the Arbitration Tribunal: Current Jurisprudence and Problem Areas under UNICITRAL Model Law, B23 INT’L ARB. L. REV. 154, 157 (2005).
[49] Id. at 157.
[50] Id. at 158. See e.g. Krutov v. Vacuouver Hockey Club Ltd., [1991] S.C.B.R. (Can.); Guandong Agric. Co. Ltd. V Conagra International (High Court of Hong Kong, Sept. 24, 1992).
[51] Uzelac, supra note 1,at 8.
[52] Croatian Law on Arbitration, supra note 21, at 13.
[53] Croatia Law on Arbitration, supra note 21, at 6; UNICTIRAL Model Law, supra note 23, at 9.
[54] Croatian Law on Arbitration, supra note 21, at 6; UNICTIRAL Model Law, supra note 23, at 9.
[55] Croatian Law on Arbitration, supra note 21, at 6; UNICTIRAL Model Law, supra note 23, at 14.
[56] Uzelac, supra note 1, at 11.
[57] Croatian Law on Arbitration, supra note 21, at 13.
[58] Uzelac, supra note 47, at 156.
[59] Uzelac, supra note 47, at 156.
[60] Croatian Law on Arbitration, supra note 21, at 11.
[61] UNICITRAL Model Law, supra note 23, at 19-20.
[62] Uzelac, supra note 47, at 154.
[63] Uzelac, supra note 47, at 161.
[64] Uzelac, supra note 47, at 161.
[65] Uzelac, supra note 47, at 161.
[66] Uzelac, supra note 47, at 161.
[67] Croatian Law on Arbitration, supra note 21, at 11.
[68] UNICITRAL Model Law, supra note 23, at 19.
[69] Croatian Law on Arbitration, supra note 21, at 13.
[70] UNICITRAL Model Law, supra note 23, at 20.
[71] Uzelac, supra note 1, at 49.
[72] Croatian Law on Arbitration, supra note 21, at 1.
[73] Vesna Lazic, The Role of Courts and Arbitration Institutions under the Croatian Arbitration Act: Does the Act Present a “Friendly” Legal Framework for Arbitration?, 14 Croat. Arb. Y.B., 21, 24 (2007).
[74] Id. at 24.
[75] Id. at 25.
[76] Croatian Law on Arbitration, supra note 21, at 14 (emphasis added).
[77] Croatian Law on Arbitration, supra note 21, at 1.
[78] Lazic supra note 72 at 27.
[79] The English Arbitration Act, 1996, c. 23, §2(3); see also Lazic supra note 72 at 27.
[80] Id.
[81] Sandra Obuljen, Croatian Arbitration Law: Receipt of Written Communications According to the Law on Arbitration, 10 Croat. Arb. Y.B., 213, 214 (2003).
[82] Zakon o parničnom postupku [ZPP] [Code of Civil Procedure] Nov. 5, 1997, Official Gazette 84/08 100, §354(2)(7).
[83] Obuljen, supra note 80, at 214.
[84] Croatian Law on Arbitration, supra note 21, at 2.
[85] UNICITRAL Model Law, supra note 23, at 3.
[86] Croatian Law on Arbitration, supra note 21, at 2.
[87] Obuljen, supra note 80, at 216.
[88] Croatian Law on Arbitration, supra note 21, at 12.
[89] Obuljen, supra note 80, at 217 and 219.
[90] Aleksandar Bravar, Croatian Arbitration Law: Maritime Disputes According to the Law on Arbitration, 10 Croat. Arb. Yearbook 201, 202 (2003).
[91] Id. at 203.
[92] Croatian Law on Arbitration, supra note 21, at 3.
[93] Id. at 203.
[94] Id.
[95] Id. at 204.
[96] Id. at 203.
[97] Id. at 202.
[98] Id. at 206.
[99] Croatian Law on Arbitration, supra note 21, at 3.
[100] Croatian Law on Arbitration, supra note 21, at 3.
[101] Pomorski Zakonik [PZ] [The Maritime Code] Dec. 21, 2004, Official Gazette 181/04 100, §674- §675; for translation in English see http://www.asbac.hr/agencylo.htm.
[102] Id.
[103] Bravar, supra note 89, at 208.
[104] Bravar, supra note 89, at 209.
[105] Croatian Law on Arbitration supra note 21, at 3.