SLOVENIA Law and Practice Contributed by: Bojan Brežan, Marko Frantar, Maks David Osojnik and Špela Lovšin, Schoenherr Slovenia
ments in the possession of the opposing party. Name- ly, if a party refers to a document in support of its case and claims that this document is in the possession of the other party, the court may – following the party’s motion – force the other party to disclose that docu- ment. Such motion must, inter alia: • identify the document specifically; • state which facts are to be proven by the docu- ment; • describe the contents of the document (as precise- ly as possible); and • provide evidence from which it may be inferred that the other party is indeed in possession of the specific document. If the opposing party refuses to comply with an order requiring it to produce the document (or denies pos- sessing the document but fails to convince the court), the court may, depending on the fact pattern, assume that the document exists and that its contents are as alleged by the other party. In any case, a party cannot refuse to submit a document if: • the party has itself relied on it in the proceedings; or • if the party is obliged to disclose it by law or on the basis of agreement of the parties. Regarding the right of a party to refuse to produce a document, the rules on exceptions for witness testi- mony apply mutatis mutandis. A witness may refuse to testify about a professional secret a party has entrusted to them as its agent or if there are other compelling reasons (eg, to protect themselves or fam- ily members from criminal prosecution). 3.11 Remedies Compensatory Collective Proceedings Under the compensatory collective actions regime, the prescribed remedy is compensation. Awarding said remedy is founded on two concepts of general tort law: the principle of full compensation (for pecuni- ary damages) or the principle of fair compensation (for non-pecuniary damages). The Collective Actions Act does not envision punitive damages.
Compensation may be awarded through one of the two main systems: • individualised allocation of compensation; or • determination of an amount or an otherwise determinable value (expressed, for example, as a percentage of the price or unit) or other value that each member of the class will receive, in which case the court will also assess the expected total amount that must be paid by the defendant. As a rule, the Collective Actions Act gives priority to the individualised allocation of compensation. In the event the individualised allocation is not possible, the Collective Actions Act foresees participation by a designated compensation administrator (ie, a notary) who takes on specific (non-judicial) tasks in respect of the compilation of a preliminary list of individuals entitled to damages (subject to court approval) and distribution of the awarded compensation among the members of the class. Should the awarded aggregate compensation be insufficient, the amounts of compensation to each individual may be proportionately lowered. Injunctive Collective Proceedings Under the injunctive collective actions regime, the pre- scribed remedy is an order of cessation and prohibi- tion of the violation in the future. Additionally, the court may, in certain instances, also decide: • to have the judgment published at the expense of the defendant; or • that a correction of inadmissible advertising shall be published. 3.12 Settlement and ADR Mechanisms The Collective Actions Act prescribes a specific regime for the settlement of collective claims. The act defines collective settlement as a written agreement for the compensation of collective damages caused in the event of mass harm, which is reached in favour of the members of the class between: • a qualified entity (or several qualified entities together); and
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