Changes to arbitration rules are being considered by ministry of justice.
The draft legislation is aimed at:
- improving citizens’ rights to obtain timely decisions from arbitral courts;
- improving the regulation of arbitration proceedings; and
- introducing special regulations for arbitrating consumer disputes.
- arbitration will be permitted in all disputes that can be resolved by a settlement agreement;
- arbitration courts will be permitted to pass declaratory judgments;
- consumer disputes will be excluded and dealt with under a new Consumer Arbitration Act;
- there will be greater freedom for contract disputes to be governed by the laws of another country (except as provided by the Rome I & II regulations).
- arbitration clauses must be in written form, which includes those contained in documents referred to in an agreement or written communication between the parties, where they want to incorporate a clause by reference. This seems to abandon the position reached by the Supreme Court (case No. 2 Cdo 245/2010) and revert to the position under the Civil Code, which permits clauses made in writing even if they aren’t integral part of the agreement;
- arbitration agreements will also be deemed to be executed where the petitioner claims the existence of an arbitration agreement and the respondent raises no objections to such agreement in its response. This will stop the practice of petitioners applying to the arbitration court, failing to pay the applicable court fee or otherwise causing the action to be suspended and then bringing the same claim before a general court claiming that the arbitration clause referred to by the respondent is void. However, it will also allow parties to resort to arbitration by informal agreement without the need to enter into a separate arbitration agreement.
- establishing an arbitration court would only be permitted for chambers of commerce, professional associations, interest groupings of legal persons or civic associations. The intention is to exclude corporations and others seeking to establish arbitration courts in order to generate profit and rake in as many cases as possible, which might prejudice the impartiality and fairness of its decisions;
- existing courts would have until the end of 2014 to comply the new requirements (e.g. by transforming into interest groupings of legal persons), in which case references to those courts in arbitration agreements will automatically be treated as referring to the transformed version. Arbitration clauses referring to a court that has not brought itself into compliance will be treated as an agreement to submit to ad hoc (rather than institutional) arbitration.
- arbitration courts would be able to issue preliminary injunctions even before the start of the proceedings and before arbitrators are appointed, where permitted by the parties’ arbitration agreement and they had submitted to the jurisdiction of the standing arbitration court;
- preliminary injunctions could be granted with or without the force of an enforcement title: the former where the other arbitration party has been given reasonable time to respond to the application after it was delivered to them; and the latter where the parties agreed that either of them could issue a preliminary injunction without seeking the other’s response (in which case the application would be delivered to the party jointly with the resolution imposing the preliminary injunction, and would constitute enforcement title only if upheld by the arbitration court after objections have been filed by the counterparty).
- a general court would be able to set aside an arbitration award if the arbitration was against civil propriety (eg if an arbitrator committed a criminal offence), although the explanatory memorandum makes clear that this will be given a restrictive interpretation;
- a more usual ground for setting aside would be where the arbitration was not conducted in the agreed manner or was held contrary to legal provisions, and this could have prejudiced the decision on the main case (which excludes most procedural errors as grounds for setting aside);
- there is clarification that the proper respondent to an application to set aside an arbitration award is the other party and not the arbitration court whose award is being challenged.
Special rules for arbitrating consumer disputes include:
- making it impossible to rule on ownership rights to properties, enforcement or insolvency cases;
- requiring consumer arbitration agreements to take the form of separate agreements (containing only arbitration arrangements) rather than arbitration clauses incorporated in consumer agreements;
- giving consumers the right to use the general courts even where they have entered into consumer arbitration agreements;
- restricting those competent to hear consumer disputes to arbitrators working at standing arbitration courts who have been registered by the Slovak Justice Ministry, and have the relevant qualifications (including a law degree), or have passed justice, general attorney, attorney or notary exams;
- consumer disputes may only be heard at standing arbitration courts where the court founder is licensed to accept such cases;
- consumers would be able to file complaints against arbitrators which, if upheld, could result in disciplinary action against arbitrators as well as fines for whoever established the standing arbitration courts;
- preliminary injunctions against consumers would not be available to arbitration courts;
- consumers would have 3 months from the award date to apply (using the prescribed form) to set aside an arbitration award.
Law: amendment to Act No. 244/2002 Coll. on arbitration