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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Croatia.
2. Date of entry into force of the New York Convention
8 Oct. 1991.
Explanatory note: The Republic of Croatia made notification of its succession to the New York Convention on 26 July 1993 but declared itself bound by the Convention as of 8 Oct. 1991.
(Source: Official Gazette of the Republic of Croatia/ International Treaties, 1994, No. 4.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(Source: Official Gazette of the Socialist Federal Republic of Yugoslavia/International Treaties, 1981, No. 11; Official Gazette of the Republic of Croatia/ International Treaties, 1994, No. 4.)
(b) commercial relationships?
Other reservation: When notifying its succession to the New York Convention, Croatia did not revoke the reservation made by the Socialist Federal Republic of Yugoslavia restricting the application of the New York Convention to awards which were made after the entry into force of the New York Convention. The reservation is without significance since under the statute of limitation the enforcement of any award rendered before the entry into force of the New York Convention would be time barred.
(Source: Official Gazette of the Socialist Federal Republic of Yugoslavia/ International Treaties, 1981, No. 11;
Official Gazette of the Republic of Croatia/ International Treaties, 1994, No. 4.)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
C. Limitation periods (time limits)
6. (a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is no specific limitation period applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards under Croatian law.
However, with regard to the enforcement of foreign awards, it may be argued that the limitation period provided for by Croatian Law on Obligations for the limitation of claims applicable to final court judgements also applies to the enforcement of foreign awards.
(Source: Execution Act, Art. 50(1)/11/.)
Under the Execution Act, the execution debtor may file an appeal against a writ of execution if the claim in the enforcement document is statute-barred.
(Source: Law on Obligations, Art. 233 para. 1; Execution Law, Art. 46 para. 11.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
There is no specific Croatian statutory provision relating to foreign awards or case law on this issue.
If the limitation period applicable to legal proceedings for the enforcement of final court judgments also applies to foreign awards, the Croatian court would determine the duration of the limitation period in accordance with the lex causae (the law applicable to the merits of the dispute). If the lex causae is Croatian law, the relevant limitation period would be ten years. The limitation period starts to run as from expiry of the time for voluntary compliance with the award, as determined by the foreign award.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The subject-matter of the dispute settled by foreign award is relevant for the determination of the competent court for recognition and enforcement of foreign awards (competence ratione materiae).
The Commercial Court in Zagreb has jurisdiction over recognition and enforcement of foreign awards if the award relates to a case which otherwise would fall within the subject matter jurisdiction of the commercial courts. Commercial courts have jurisdiction over contractual disputes, disputes regarding companies, intellectual property disputes, unfair competition disputes, navigational disputes, etc.
(Source: Arbitration Act, Art. 43(1) and (2); Civil Litigation Act, Art. 34(b); Law on Courts, Art. 21/5/.)
In all other matters, the County Court in Zagreb has jurisdiction over recognition and enforcement of foreign awards.
(Source: Arbitration Act, Art. 43(1) and (2); Civil Litigation Act, Art. 34(a); Law on Courts, Art. 19.)
After the decision granting enforcement has been rendered, the competent court as specified under the Execution Act has jurisdiction over the measures to enforce the award.
(Source: Arbitration Act, Art. 43(2).)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
There are no specific jurisdictional requirements other than competence ratione materiae set out in Q.7 above.
An application for recognition or enforcement of foreign award is subject to general requirements applicable to all judicial proceedings: (i) the parties must have active and passive ius standi in iudicio, i.e. the applicant and the party against whom recognition and enforcement are sought must be parties to the dispute resolved by the foreign award or their legal successors, and (ii) the applicant seeking for recognition or enforcement must have a legitimate interest to act.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
When the applicant only applies for recognition of a foreign award, the court shall provide to the opposite party an opportunity to be heard in the recognition proceedings. Therefore, the decision on granting or denying recognition is rendered in inter partes proceedings.
(Source: Arbitration Act, Art. 49(2).)
When the applicant directly applies for enforcement of a foreign award (in which case recognition is decided upon as a preliminary issue in relation to main issue of enforcement), the court shall provide to the opposite party an opportunity to be heard on the claim for enforcement unless it would jeopardize the successful implementation of enforcement. Although the court may render a decision in ex parte proceedings, legal commentators consider that the court should, whenever possible, render a decision in inter partes proceedings.
(Source: Arbitration Law, Art. 49(3).)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
One. A decision granting or denying recognition may be appealed to the Supreme Court of the Republic of Croatia regardless of whether the decision on recognition was rendered by the Commercial Court or the County Court in Zagreb. The appeal shall be filed within 15 days from the service of the decision on recognition.
(Source: Arbitration Act, Art. 49(5).)
A decision granting or denying enforcement may be appealed within 15 days from the date of service of the decision. This appeal does not prevent the execution of the decision granting enforcement, unless otherwise provided by the Execution Act.
(Source: Execution Act, Art. 11(1) and (3).)
The appellate court against a decision on enforcement rendered by the Commercial Court in Zagreb is the High Commercial Court of the Republic of Croatia. The appellate court against a decision on enforcement rendered by the County Court of Zagreb is the Supreme Court of the Republic of Croatia.
(Source: Law on Courts, Art. 24/1/; Civil Litigation Act, Art. 34(b).)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
As soon as the decision granting full or partial enforcement of the award is rendered, the execution against assets may be obtained. The filing of an appeal against the decision granting the enforcement does not prevent execution against assets.
The decision granting enforcement, together with the foreign award, constitutes an enforceable document allowing the party to start the execution against the assets of the debtor party against whom enforcement is sought.
(Source: Execution Act, Art. 11(4).)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied: (i) the original arbitral award or a duly certified copy thereof, and (ii) the original arbitration agreement or a duly certified copy thereof.
(Source: New York Convention, Art. IV(1); Arbitration Act, Art. 47(2).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to supply (i) the arbitral award in its entirety and (ii) the whole document containing the arbitration agreement, i.e. the entire contract.
(c) Are originals or duly certified copies required?
The following are required: (i) an original or duly certified copy of the award and (ii) an original or duly certified copy of the arbitration agreement.
In order to meet the requirement of ‘duly certified copies’ for signatures of foreign arbitrators or parties, when the award is rendered in the country party to the Hague Convention of 5 Oct. 1961 ‘Abolishing the Requirement of Legalisation for Foreign Public Documents', court practice usually requires that the arbitration agreement and the award shall be certified pursuant to this Convention
(d) How many originals or duly certified copies are required?
The following are required: (i) one original or duly certified copy of the award for the court and the party against whom recognition and/or enforcement is sought; and (ii) one original or duly certified copy of the arbitration agreement for the court and the party against whom recognition and/or enforcement is sought.
(e) Does the authority or court keep the originals that are filed?
Unless a written and reasoned request for return of the originals is submitted, the court will keep the originals.
13.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: New York Convention, Art. IV(2); Arbitration Act, Art. 47(3).)
(b) If yes, into what language?
Croatian.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes. The translation shall be certified by a foreign or Croatian sworn translator or by a diplomatic or consular agent.
(Source: New York Convention, Art. IV(2).)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
If the award or agreement filed with the application for recognition or enforcement are not in Croatian, the applicant shall produce a duly certified translation.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
If proceedings for the setting aside or suspension of the foreign award have commenced before a competent court, the court deciding on the recognition or enforcement the foreign award may, if it considers it proper, adjourn its decision until the termination of the proceedings for setting aside or suspension.
(Source: New York Convention, Art. VI; Arbitration Act, Art. 48.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Pursuant to the Croatian Insolvency Act, legal proceedings for enforcement of a foreign award may be stayed ex officio upon after the opening of insolvency proceedings against an award debtor. Should the insolvency proceeding continue, the award creditor may pursue its claim for enforcement in the insolvency proceedings under the rules of insolvency proceedings.
(Source: Insolvency Act, Off. Gaz. 71/2015, Art. 169(1) and (4).)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, upon a party’s request, the court may, if it considers it proper, order the other party the provide suitable security.
(Source: New York Convention, Art. VI; Arbitration Law, Art. 48.)
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Yes. The documents filed in legal proceedings for recognition and enforcement form part of the public record. Inspection of a court file is permitted for authorised persons only.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Hearings on recognition and enforcement are not confidential. Parties may request that confidentiality be preserved in accordance with the rules permitting to refuse access of the public to court proceedings.
(Source: Civil Litigation Act, Art. 307(1).)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Judgments on recognition and enforcement are not published. An overview of decisions of the High Commercial Court (www.vtsrh.hr) and Supreme Court (www.vtsrh.hr) is available on-line in full text but, as a rule, decisions are anonymized.
Dicta and extracts from court decisions may be published in law journals. The names of the parties, and any other information that may be damaging to the interests of the parties, are removed.
If the court file number is known, decisions of all Croatian courts are accessible on-line in full text through eFile system.
(Source: Order on eFile, Off. Gaz. Nos. 35/2015, 123/2015, and 25/2016.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Yes. It is possible to obtain recognition or enforcement in Croatia of interim or partial foreign awards, provided these awards relate to the merits of the dispute and are final.
(Source: Arbitration Act, Art. 30(1) together with Art. 40(1).)
It is not possible to obtain recognition or enforcement of procedural orders or interim relief that do not decide on the merits of the dispute, regardless of whether they are entitled ‘order’ or ‘award’.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
As a general rule, it is possible to obtain recognition and enforcement in Croatia of foreign awards granting non-monetary relief. Awards that provide for non-monetary relief are treated in the same way as awards providing for monetary relief.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
It is possible to obtain recognition and enforcement of only part of the relief granted in a foreign award. Recognition or enforcement of part of the award is possible if the award is severable, i.e. if a part of the award deals with a dispute not contemplated by or not failing with the terms of the arbitration agreement, or if the award contains decisions on matters beyond the scope of the arbitration agreement, provided that such parts can be severed from the rest of the award.
(Source: New York Convention, Art. V(1)(c).; Arbitration Act, Art. 40(1) together with Art. 36(2)/1/(d).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
The Republic of Croatia is a Contracting State to the 1961 European Convention on International Arbitration. Art. VII(1) of the New York Convention specifically provides that it does not affect the validity or rights under such other agreements or conventions. Art. IX(2), para. 1, of the European Convention on International Arbitration on relations between Contracting States to this Convention that are also parties to the New York Convention, limits the application of Art. V(1)(e) of the New York Convention solely to the grounds for setting aside listed in Art. IX(1) of the European Convention on International Arbitration. The grounds listed in Art. IX(1) of the European Convention on International Arbitration match those listed in Art. V(1)(a)-(d) of the New York Convention. Hence, a foreign award which has been set aside in a Contracting State to the European Convention on International Arbitration on grounds set out under Art. V(2) of the New York Convention may be recognized or enforced in Croatia.
(Source: European Convention on International Arbitration, Art. IX(2); New York Convention, Art. VII(1).)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
No. Once the enforcement of a foreign award has been granted, an motion for execution shall specify the means by which the execution is to be carried out and, if necessary, the subject matter in respect of which it is to be enforced.
(Source: Execution Act, Art. 39(1).)
Country Rapporteur: Hrvoje Sikirić