This article examines the enforcement framework for interim measures granted by arbitral tribunals in Serbia, highlighting the complementary roles of arbitral tribunals and state courts.
The Legal Framework
Article 31 of the Serbian Law on Arbitration empowers arbitral tribunals to order provisional measures deemed necessary regarding the subject matter of the dispute. Tribunals may also require the requesting party to provide appropriate security. However, neither the Law on Arbitration nor the rules of Serbia’s arbitral institutions regulate the enforcement of such measures.
Instead, enforcement falls within the exclusive jurisdiction of state courts under the Law on Enforcement and Security. This legislative division reflects a fundamental principle: arbitral tribunals may order interim measures, but they lack the coercive authority to enforce them.
Why Arbitral Tribunals Cannot Enforce Interim Measures
The limitation on arbitral enforcement powers stems from several interrelated principles:
Jurisdiction Limited to the Parties: An arbitral tribunal derives its authority from the arbitration agreement, which binds only the parties to that agreement. Consequently, the tribunal’s jurisdiction extends solely to those parties. It cannot issue binding orders to third parties, including public authorities or enforcement officers.
Coercion as a State Prerogative: Security proceedings involve the exercise of coercive state authority. The power to compel compliance—whether by freezing bank accounts or seizing assets—cannot be delegated to private arbitral institutions. This principle preserves the state’s monopoly on legitimate coercive measures.
Exclusive Court Jurisdiction: Article 419 of the Law on Enforcement and Security grants state courts exclusive jurisdiction over security measures and the posting of security. This statutory framework leaves no room for arbitral tribunals to independently enforce their interim orders.
A Cautionary Example
One arbitral proceeding before the Permanent Arbitration of the Serbian Chamber of Commerce illustrated the dangers of overstepping these boundaries. In that case, the arbitral tribunal not only ordered a provisional measure but also initiated direct communication with the National Bank of Serbia and a public enforcement officer, instructing the transfer of funds from the respondent’s bank account.
This conduct exceeded the tribunal’s authority. Arbitral tribunals cannot issue binding instructions to public authorities or officials tasked with exercising public powers. Such actions are unlawful and should not serve as precedent.
The Role of State Courts
Given these limitations, parties seeking enforcement of interim measures must turn to state courts. Article 15 of the Law on Arbitration explicitly permits parties to seek interim measures from state courts—measures that necessarily involve coercive elements unavailable to arbitral tribunals.
This allocation of functions ensures that:
- Arbitral tribunals focus on resolving the substantive dispute
- State courts provide the coercive apparatus necessary for effective interim relief
- Third parties and public authorities remain unaffected by arbitral orders to which they are not party
Practical Considerations
For parties involved in Serbian arbitration, several practical implications arise:
- Seek enforcement from state courts: An arbitral tribunal’s interim order must be enforced through the competent court under the Law on Enforcement and Security.
- Consider parallel court applications: When urgency requires coercive measures, parties may directly seek interim relief from state courts under Article 15.
- Provide security: Both arbitral tribunals and state courts may condition interim relief on the requesting party posting appropriate security.
- Respect jurisdictional boundaries: Arbitral tribunals should confine their orders to the parties and refrain from directing third parties or public authorities.
Conclusion
While arbitral tribunals in Serbia possess clear authority to order interim measures, enforcement remains the exclusive domain of state courts. This division reflects sound policy: arbitration provides efficient dispute resolution, while the state retains its monopoly on coercion. Parties and practitioners must navigate this framework carefully, ensuring that interim measures ordered in arbitration are properly enforced through judicial channels when coercive action becomes necessary.
The complementary roles of arbitral tribunals and state courts—one ordering, the other enforcing—create a balanced system that respects both party autonomy and the fundamental limits of private adjudication.
More on this by Dušan Žegarac, from JPM Belgrade offic, can be found here.
