BOSNIA & HERZEGOVINA Trends and Developments Contributed by: Miodrag Jevtić, Gecić Law
insufficient familiarity with arbitration mechanisms among local counsel, leading parties to favour more conventional dispute resolution forums, including domestic litigation or informal negotiation. Furthermore, contractual frameworks for foreign investment projects in Bosnia and Herzegovina are frequently designed to channel disputes through bilateral investment treaties (BITs), rather than com - mercial arbitration clauses. As a result, many poten - tially commercial disputes involving foreign parties are redirected into the investor-state arbitration sphere. This dynamic further reduces the visibility and devel - opment of Bosnia and Herzegovina as an active juris - diction in international commercial arbitration. Compounding the issue is the absence of public - ly available or centralised data on the number and nature of international commercial arbitrations involv - ing Bosnian parties. When faced with a dispute of international character, many local companies tend to default to court proceedings or agree to alternative dispute resolution mechanisms under foreign jurisdic - tions, particularly where there is a perception of more predictable legal outcomes or stronger enforcement mechanisms. Investor-State Arbitration: Prominent and Expensive In contrast to its modest role in international commer - cial arbitration, Bosnia and Herzegovina has become a highly visible and active respondent in investor-state arbitration proceedings. Over the past decade, and especially in the 2020–2025 period, the country has faced a growing number of high-value claims initiated under the auspices of ICSID and UNCITRAL, predomi - nantly under bilateral investment treaties (BITs) and, to a lesser extent, the Energy Charter Treaty (ECT). Most of these claims have arisen in sectors with high regulatory and strategic significance, notably hydro - power, thermal energy production, mining and renew - able energy. These proceedings have provided a more precise understanding of the recurring patterns in the con - duct and defence of investor-state arbitration involv - ing Bosnia and Herzegovina. Claimants have gener - ally alleged breaches of fair and equitable treatment
(FET), indirect expropriation, denial of justice and arbi - trary interference with regulatory frameworks. These legal bases reflect standard BIT provisions. However, in the context of Bosnia and Herzegovina, they are often connected to unstable administrative processes, conflicting jurisdictional competences between state and entity levels, and deficiencies in implementing public-private investment agreements. At the same time, these cases have allowed Bosnia and Herzegovina to gradually develop a body of legal and institutional experience in managing complex international disputes. Although the country’s initial engagements in arbitration were marked by fragment - ed co-ordination and reliance on ad hoc legal teams, more recent disputes show increasing involvement of the Ministry of Foreign Trade and Economic Relations and improved co-operation between entity govern - ments and international counsel. Notably, legal experts and practitioners have observed that the Viaduct case ( Goljevšček v BiH ), among oth - ers, has catalysed re-evaluating risk allocation in pub - lic contracts and concessions, particularly in the ener - gy and infrastructure sectors. A recurring issue has been the insufficient harmonisation between domestic laws and the obligations undertaken in international treaties, as well as a lack of ex-ante legal review of contracts from an investment protection standpoint. Progress in this area requires Bosnia and Herzegovina to take a more proactive and structured approach to investment arbitration. This includes better internal co-ordination and capacity-building for government teams involved in arbitration and establishing a trans - parent and centralised case tracking system. Moreo - ver, the state should consider conducting systematic treaty impact assessments and updating its network of BITs to reflect more balanced and modern stand - ards, including more precise definitions of key terms, stronger exceptions clauses, and more structured procedural mechanisms. From a long-term development standpoint, though frequently costly, the experience gained through these arbitrations allows Bosnia and Herzegovina to strengthen its legal resilience, improve regulatory predictability and gradually develop a more arbitra -
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