Višje sodišče v Ljubljani (High Court of Ljubljana), 28 August 2018

At a glance

Parties

Unnamed creditor (upnik) v. unnamed debtor (dolžnik)

Case no.

VSL Sklep I Ip 1682/2018 (ECLI:SI:VSLJ:2018:I.IP.1682.2018)

Court

Višje sodišče v Ljubljani (High Court of Ljubljana), Enforcement Division

Underlying award(s)

Foreign arbitral award of the Commercial Arbitration Court in Vilnius, recognised in Slovenia

Forum and rules

Slovenian enforcement proceedings; Enforcement and Security Act (ZIZ), Arbitration Act (ZArbit) Article 42, New York Convention Articles III and IV

Treaty

New York Convention 1958

Tribunal

Single judge: Damjan Orož

Outcome

The debtor's appeal was dismissed. The first-instance decision rejecting its objection to enforcement and its request to defer enforcement was upheld.

Amount

Creditor's claim: EUR 263,203.88 plus accessories. Costs of the reply to the objection: EUR 1,249.31. Costs of the reply to the appeal: EUR 1,261.19.

The dispute

A creditor sought enforcement in Slovenia of a foreign arbitral award made by the Commercial Arbitration Court in Vilnius. The award had been recognised in Slovenia, and the creditor's claim was EUR 263,203.88 plus accessories. The first-instance court granted the debtor's objection only as to enforcement costs above EUR 156.00 and otherwise dismissed it. It also refused to defer enforcement and ordered the debtor to pay the costs of the creditor's reply. On appeal, the debtor raised four points. First, the enforcement application lacked the creditor's identification data. Second, the Vilnius body was a private legal entity, not a foreign authority, so Article 13 ZIZ did not apply. Third, the award required a certificate of enforceability. Fourth, enforcement would cause irreparable harm, and the costs of the creditor's reply were not necessary.

Key holdings

1. The missing identification data did not make the enforcement order unlawful. The creditor's identity was not in dispute, and the omission did not affect the legality of the order under Article 40(1) ZIZ. ¶ 5
2. Foreign arbitral awards are enforced under Article 42 ZArbit and the New York Convention as lex specialis, not under Article 13 ZIZ. Under Article III of the Convention, the ZIZ governs only the enforcement procedure. ¶ 6
3. The only condition is the one in Article IV(1)(a) of the Convention: the party must supply the authenticated original award or a certified copy. ZArbit does not require the arbitration agreement even for recognition, so it is not required for enforcement either. Neither ZArbit nor the Convention requires a certificate of enforceability for a foreign award. ¶ 7
4. The objection that the Vilnius Commercial Arbitration Court is not an arbitral tribunal could be raised only in the recognition proceedings. The foreign award, together with the decision recognising it, is the enforcement title, and it binds the enforcement court. ¶ 7
5. Enforcement was not deferred. The ordinary consequences of enforcement, such as blocked accounts, loss of business partners and possible insolvency, are not irreparable or hard-to-repair harm. ¶ 8
6. The creditor's reply to the objection was a necessary cost. It reflects the right to equal protection under Article 22 of the Constitution. Refusing such costs is justified only where the reply contributed nothing or the objection was obviously unfounded. The debtor's success on EUR 28.00 of costs was negligible. ¶ 9
7. The appeal was dismissed. The debtor bears its own appeal costs and must pay the creditor EUR 1,261.19 for the costs of the reply to the appeal. Operative part; ¶¶ 10–11

Procedural history

1. Award of the Commercial Arbitration Court in Vilnius recognised in Slovenia (date not stated).
2. First-instance court issues an enforcement order. It later grants the debtor's objection in part (costs above EUR 156.00), rejects the rest of the objection and refuses to defer enforcement.
3. 28 August 2018High Court of Ljubljana dismisses the debtor's appeal and confirms points II–V of the first-instance decision.

Tribunal, counsel and experts

Decided by

• Damjan Orož Judge, Višje sodišče v Ljubljani

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Keywords

• enforcement of foreign arbitral award
• New York Convention Article III
• New York Convention Article IV(1)(a)
• certificate of enforceability
• Slovenia
• Arbitration Act ZArbit Article 42
• Enforcement and Security Act ZIZ
• Commercial Arbitration Court in Vilnius
• Lithuania
• deferral of enforcement
• irreparable harm
• costs of reply to objection
• equal protection of rights
• arbitration agreement not required
• enforcement title

Summary generated with AI from the published documents — refer to the award for the authoritative text.