Courts retain jurisdiction to issue interim relief before or during arbitration proceedings, irrespective of an arbitration agreement or the tribunal’s constitution (Law on Arbitration, Art. 15). Tribunals may also order necessary measures at any stage of the proceedings (Art. 31).
National Courts:
- Governed by the Law on Enforcement and Security, requiring applicants to demonstrate:
(i) Likelihood of success on the merits;
(ii) Risk of irreparable harm (e.g., debtor dissipating assets). - Competent courts are determined by the debtor’s registered seat
- Requests to courts do not waive arbitration agreements.
Arbitral Tribunals:
- Rules of Serbian institutions (PKS and BAC) align with international standards (UNCITRAL Model Law), allowing tribunals to:
(i) Issue provisional measures (e.g., asset freezes, injunctions);
(ii) Require security from applicants;
(iii) Grant ex parte measures in urgent cases. - Tribunals lack coercive powers; enforcement requires court support.
Key Distinction:
While courts follow strict statutory conditions (e.g., proving “risk to monetary claims”), tribunals operate under broader discretion but face procedural ambiguities under Serbian law. This has led to limited use of tribunal-ordered measures in practice.
Practical Implication:
Provisional measures are vital for preserving rights in arbitration. Parties should strategically assess whether to seek relief from courts (for enforceability) or tribunals (for procedural efficiency), considering the nuanced legal landscape.
This analysis written by Dušan Žegarac, Senior Associate, and Associate Petar Mrdja, from the JPM Belgrade office, is Part 1 of a series on provisional measures in Serbian arbitration.
