Current Case Law of the Slovak National Courts regarding Arbitration - Czech and Central European Yearbook of Arbitration - Independence and Impartiality of Arbitrators - 2014

Author(s):

Martin Magál

Martina Kasemová

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February, 2014

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Originally from Czech and Central European Yearbook of Arbitration - 2014: Independence and Impartiality of Arbitrators

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1. Slovak Courts Do Not Have Jurisdiction to Order

an Interim Measure after the Commencement of

Arbitral Proceedings. Ruling of the Regional

Court in Bratislava [SVK], file No 2 Cob 74/2013,

dated 14 March 2013 and Ruling of the Supreme

Court of the Slovak Republic, file No 5 Obdo

24/2013, dated 12 June 2013.

Key words:

interim measures | lack of jurisdiction by the court | exclusive jurisdiction

of the arbitral tribunal

States Involved:

Chile;

Slovakia

17.01. Slovak courts have no jurisdiction to order interim measures after the

initiation of arbitral proceedings even when the arbitral tribunal has

not been constituted yet. A court has jurisdiction to issue an interim

measure only before the commencement of arbitral proceedings.

[Description of Facts and Legal Issues]

17.02. A Slovak developer involved in the construction of an industrial project

in Chile allegedly breached their obligations under the underlying

contract and its Chilean counterparty sought payment pursuant to

performance bonds issued by a Slovak bank. The respective contract

and the performance bonds contained an arbitration clause requiring

submission of all disputes to arbitration in Paris under ICC Rules.

Facing the request of the Chilean counterparty for payment pursuant to

the performance bonds, the Slovak developer initiated arbitral

proceedings. In those proceedings, the Slovak developer sought

declaratory relief to the effect that they had complied with their

contractual obligations and no breach had been committed.

17.03. Pending the outcome of the arbitration, the Slovak developer submitted

a request with the Slovak courts to order an interim measure that

would prevent the bank from paying under the performance bonds.

The Slovak court of first instance issued an interim injunction ex parte

and the Chilean counterparty filed an appeal with the Regional Court.

[Decision of the Regional Court]

17.04. The Regional Court held that the legislator’s intent under the

Arbitration Act has to be interpreted in a way that the arbitral tribunal

has exclusive jurisdiction to issue interim measures after the

commencement of arbitral proceedings. Otherwise, the court argued,

the concurrent jurisdiction of courts and the arbitral tribunal could be

abused by the parties to arbitral proceedings and result in ‘forum

shopping’. This could lead to a situation where a party whose request

for interim measures has been refused by either the arbitral tribunal or

the court could nevertheless attempt to obtain an equivalent measure

from the other body.

17.05. On the basis of the above, the Regional Court opined that since ICC

arbitration had already commenced, Slovak courts no longer had

jurisdiction to order interim measures. This was despite the fact that no