ПРИПАДНОСТ АРБИТРАЖНЕ ОДЛУКЕ И ЊЕН ПОНИШТАЈ
APPERTAINING OF AN ARBITRATION DECISION AND ITS ANNULMENT

Summary/Abstract: Three questions are considered in the present article, from the angle of the Yugoslav positive law, connected to the settling of international commercial disputes by way of arbitration. The first one concerns the process of determination of appertaining in terms of a country, of an arbitration decision; the second deals with the possibility of contesting such decision through an action for annulment, lodged with the state courts; and the third one relates to the jurisdiction of the arbitration tribunal in case of a new dispute, if the arbitration decision has been annulled. Referring to the first question, the author supports the view that the so-called voluntary criterion (i.e. the law-of-procedure autonomy of will of the parties) should be used in the one-way manner, namely, only with the aim of connecting an arbitration decision enacted in Yugoslavia to some foreign country. The voluntary criterion is not applicable if the arbitration decision has been enacted abroad. This means that article 97 of the Yugoslav Law on Private International Law, by which the appertaining of an arbitration decision is determined, does not contain in its aubstance the system of „mirror”. As far as the second question is concerned, the author submits relevant arguments, otherwise prevailing in Yugoslav legal literature, according to which domestic regular (state) courts may be competent only in annulling arbitration decisions which, on the ground of article 97 of mentioned Law, are considered as Yugoslav ones. Finally, the fact that an arbitration decision concerning a disputed issue has been annulled by the court, does not mean — according to the author — that the arbitration tribunal has lost its juristiction without any exception, so that, as a consequence, the state court would be eventually competent in the repeated proceedings over the same contested issue. The exceptions are as follows: the court shall have no jurisdiction if the parties conclude a new arbitration agreement (which is not contestable); the case of an arbitration decision being annulled due to grounds which do not relate the existence and validity of the arbitration clause serving as the basis for deciding by the arbitration. In the latter case the parlies are still bound by the arbitration clause which is not annulled by the court decision.

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