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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)
Republic of Slovenia.
2. Date of entry into force of the New York Convention
25 June 1991.
Slovenia became an independent State and took over all treaties, including the New York Convention, of the Socialist Federal Republic of Yugoslavia. Date of succession to the New York Convention is 6 July 1992.
(Source: Law Ratifying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Official Gazette of the Socialist Federal Republic of Yugoslavia, international agreements, No. 11/1981, 9 Oct. 1981). The Republic of Slovenia succeeded to the Socialist Federal Republic of Yugoslavia's rights and obligations under international treaties on 25 June 1991 by the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette of the Republic of Slovenia, No. 1I/1991, 25 June 1991). Succession was notified by the Act Notifying the Succession of the Conventions of the United Nations Organization and the Conventions Adopted by the International Atomic Energy Agency (Official Gazette of the Republic of Slovenia, international agreements, No. 9/92, 17 July 1992).)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
No.
In 2008, Slovenia withdrew both the reciprocity clause reservation as well as the ‘commercial case reservation’.
(Source: Act amending the Act Notifying the Succession of the Conventions of the United Nations Organization and the Conventions Adopted by the International Atomic Energy Agency, Official Gazette of the Republic of Slovenia, international agreements, No. 35/2008, 10 April 2008.)
(b) commercial relationships?
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?
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)?
(i) Arbitration Act, Official Gazette of the Republic of Slovenia, No. 45/2008, 9 May 2008;
(ii) Non-contentious Procedure Act, Official Gazette of the Socialist Republic of Slovenia, No. 30/1986;
(iii) Civil Procedure Act, Official Gazette of the Republic of Slovenia, No. 73/2007, ZPP – UPB3;
(iv) Execution of Judgments in Civil Matters and Insurance of Claims Act, Official Gazette of the Republic of Slovenia, No. 3/2007, ZIZ – UPB4.
The Arbitration Act stipulates that the New York Convention shall apply for recognition and enforcement of foreign arbitral awards, therefore the Arbitration Act does not contain extensive rules on recognition and enforcement. The Arbitration Act provides that, in the interpretation of the Act, consideration should be given to the need to promote uniformity in the application of the UNCITRAL Model Law on International Commercial Arbitration and the principle of good faith.
(Source: Arbitration Act, Arts. 2 and 42.)
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 a limitation period, but only as a matter of substantive and not procedural law. It applies only to arbitral awards, which are governed by Slovenian (substantive) law.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The statute of limitation is considered to apply as a matter of substantive law and not of procedural law in Slovenia. The court must determine which substantive law is applicable to the substance of the case. Hence the limitation period applies only to foreign arbitral awards which relate to a legal relationship, governed by Slovenian substantive law. The defence of statute of limitations must be invoked and is not applied ex officio.
Provided that the issue of limitation is invoked by the party resisting enforcement, the limitation period for the enforcement of foreign arbitral awards (subject to Slovenian substantive law) is ten years from the date the debtor was to perform according to the award (provided that the award has been delivered to all parties and is final).
(Source: Obligations Code, Official Gazette of the Republic of Slovenia, No. 83/2001.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Enforcement of foreign awards in Slovenia is a two stage process. The first stage is to apply for the award to be recognized – this gives the award the same ‘quality’ as a state court judgment. The second stage is the application for enforcement.
A foreign arbitral award may be recognized by the District Court of Ljubljana (Okrožno sodišče v Ljubljani) and then enforced by the competent district Court (Okrožno sodišče) where the assets are located.
(Source: Arbitration Act, Arts. 9 and 42.)
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 requirements for the District Court of Ljubljana to recognize a foreign award. The recognition and enforcement of foreign awards is, pursuant to Art. 42 of the Arbitration Act, governed directly by the New York Convention.
With regard to enforcement, the applicant must establish that the debtor has assets within the relevant District where enforcement is sought.
(Source: Arbitration Act, Art. 42.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Inter partes. In matters of recognition of foreign arbitral awards, the court proceeds in accordance with the rules on non-contentious civil proceedings. Before issuing its decision, the court shall give the opposing party an opportunity to present its case.
(Source: Arbitration Act, Art. 9.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes.
(b) How many levels of appeal or recourse are available against this decision?
One level. An appeal against a decision of the District Court of Ljubljana to recognize an award is decided by the Supreme Court of the Republic of Slovenia. No extraordinary recourse against a decision is admissible.
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)?
A party can start execution against assets (i) after the court decision on recognition of the foreign arbitral award has gained res iudicata status (i.e. no appeal is pending and the time limit for bringing an appeal has expired) or (ii) if the court decides that its decision is immediately enforceable, notwithstanding an appeal. Only a decision on recognition and enforceability together with an arbitral award forms a final and complete title for enforcement.
If the above conditions are met, a party can obtain execution against assets after (i) it files a request for enforcement and (ii) the court issues a decision by which enforcement is granted and a private executor is appointed.
(Source: Non-contentious Procedure Act, Art. 32(1); Execution of Judgments in Civil Matters and Insurance of Claims Act, Arts. 17, 40, 44, 44a.)
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.)?
When seeking recognition of a foreign arbitral award, it suffices that the party requesting recognition presents an original arbitral award or a copy. If requested by the court, the party shall also supply an original or a certified copy of the arbitration agreement (usually requested where the existence of a written and valid arbitration agreement is disputed).
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
Usually it is sufficient to provide the part of the contract containing the arbitration agreement or a certified copy of it.
(c) Are originals or duly certified copies required?
Duly certified copies suffice.
(d) How many originals or duly certified copies are required?
Documents should be filed in a sufficient number of copies for the court and the opposing parties.
(e) Does the authority or court keep the originals that are filed?
If an original document is submitted by the party, the court will hold the original document and allow the other party to inspect it. Once the original document is no longer needed by the court, it shall be returned to the party upon its motion; however, upon the return of the original document, the court may order the party to submit a copy thereof.
(Source: Civil Procedure Act, Art. 107.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes. The arbitral award, the arbitration agreement (if requested) and other supplied documents should be translated.
(b) If yes, into what language?
Slovenian.
(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)?
A sworn interpreter.
(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)?
A full translation of the relevant documents is required.
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?
An application made at the seat of arbitration to set aside or suspend an arbitral award may constitute grounds for staying or refusing recognition and enforcement of that award in Slovenia.
The Arbitration Act does not contain express rules but, however, stipulates that the New York Convention applies to the recognition and enforcement of foreign arbitral awards. Therefore, the court may, if it considers proper, (i) adjourn the decision on the enforcement of the arbitral award and (ii) upon the application of the party requesting enforcement of the award, order the party seeking a stay to provide suitable security.
(Source: Arbitration Act, Art. 42; New York Convention, Art. VI.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
There are no other grounds.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No, it is not conditional. However, upon application of the party requesting enforcement, the court can order the other party to give suitable security.
(Source: Arbitration Act; Art. 42, New York Convention, Art. VI.)
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?
Persons who prove their standing (legal interest) may be permitted to inspect and make copies of court files and documents therein. While the proceedings for recognition and enforcement are in progress, such permission shall be granted by the presiding judge, whereas after the completion of the proceedings the permission shall be granted by the president or the chief judge of the court.
A party can seek closure of the file on the basis that closure is required to protect official, business or personal secrets, or for moral considerations.
(Source: Civil Procedure Act, Art. 150; Arbitration Act, Art. 9)
(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 in Slovenian courts are generally public, not confidential. Upon the motion of a party, who demonstrates a legitimate interest, the proceedings may be closed to the public. A party can seek to exclude the public and maintain confidentiality to protect official, business or personal secrets, or for moral considerations.
(Source: Arbitration Act, Art. 9; Civil Procedure Act, Art. 294.)
(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)?
Recognition and enforcement decisions are generally not published.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Under the same conditions as final awards.
(Source: Arbitration Law, Art. 42(1), which generally refers to arbitral awards issued in a foreign arbitration, i.e. foreign arbitral awards.)
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)?
Arbitral awards that provide for non-monetary relief are treated in the same way as awards providing for monetary relief.
(Source: Arbitration Act, Arts. 4 and 42.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
A party is free to apply to enforce only part of the relief granted in a foreign arbitral award.
(Source: Arbitration Act, Art. 42(2), New York Convention, Art. V(1)(c).)
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 Slovenian Supreme Court has in one case refused recognition and enforcement of a foreign arbitral award, which was set aside by its ‘home country’
(Source: Slovenian Supreme Court No. Cpg 7/2014, 7 April 2015.)
However, there is insufficient case-law in Slovenia for a comprehensive assessment to be made.
As the Arbitration Act stipulates that the New York Convention applies to the recognition and enforcement of foreign arbitral awards, some scholars accept that there can be a certain degree of court discretion and that the court may recognise a foreign award even if it was set aside by a competent authority of the country of the seat of arbitration.
(Source: Aleš Galič, ‘Arbitration in transformation: the experience of a country in transition’ in Schiedsgerichtsbarkeit in Zentraleuropa (Ed. P. Oberhammer, Verlag, 2005); Aleš Galič, ‘Enforcement of foreign arbitral awards in Slovenia’, Revista Română de Arbitraj, No. 3 (35), 2015; Tomaž Keresteš, ‘Pridržek javnega reda pri priznavanju tujih arbitražnih odločb po Newyorški konvenciji’, Podjetje in delo 25 (1999) 8; Maja Menard, ‘Priznanje in izvršitev arbitražnih odločb’, Slovenska Arbitražna Praksa (Slovenian Arbitration Review) 1 (2012).)
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.)?
Country Rapporteur: Nejc Lahne