SLOVENIA Law and Practice Contributed by: Vesna Cukrov and Veronika Cukrov, Law Firm Cukrov (Odvetniška družba Cukrov o.p., d.o.o.)
However, Article 47 (3) of the Treaty provides that investments that were already covered by its protec - tion at the time the withdrawal took effect continue to enjoy protection for a further 20 years, which for Slovenia means continued exposure until 14 October 2044. The withdrawal thus closes the door to claims arising from new investments, but not to disputes aris - ing from existing ones.
dispute concerns rights that are subject to mandatory legal protection or public interest considerations, it will generally not be capable of being resolved through arbitration. Examples of arbitrable disputes include: • commercial and contractual disputes (eg, sale, distribution, construction, agency and service agreements); • shareholder and corporate disputes involving dis - posable rights; • disputes arising out of joint venture agreements; • claims for damages; • disputes concerning intellectual property licensing and technology transfer agreements; and • most international commercial disputes. 3.3 National Courts’ Approach Under Slovenian law, national courts generally respect the principle of party autonomy when determining the law applicable to an arbitration agreement. The parties may expressly choose the law governing the arbitration agreement. If the parties have not made such a choice, the applicable law is determined in accordance with the conflict-of-law rules applicable to arbitration agreements, taking into account the cir - cumstances of the case and the closest connection principle. Slovenian courts generally adopt a pro-arbitration approach and favour the enforcement of valid arbitra - tion agreements. Pursuant to the Slovenian Arbitration Act, a court seized of a dispute that is covered by a valid arbitration agreement must decline jurisdiction if the defendant raises the objection of the existence of an arbitration agreement in due time. The courts therefore generally respect the parties’ agreement to submit disputes to arbitration, unless the arbitration agreement is invalid, ineffective or incapable of being performed. 3.4 Validity Under Slovenian law, an arbitration clause may remain valid even if the contract in which it is contained is invalid. The Slovenian Arbitration Act expressly rec - ognises the principle of separability of the arbitration agreement, according to which an arbitration clause
3. The Arbitration Agreement 3.1 Enforceability
Under the Slovenian Arbitration Act, an arbitration agreement is enforceable if it is concluded in writing and clearly demonstrates the parties’ intention to sub - mit existing or future disputes arising out of a defined legal relationship to arbitration. The writing require - ment is satisfied by a signed document, an exchange of letters, emails or other recorded communications, or by reference to another document containing an arbitration clause, provided the reference makes the clause part of the contract. An arbitration agreement may relate to contractual as well as non-contractual disputes, provided that the subject matter is arbitrable under Slovenian law. The agreement must also com - ply with the general requirements for the validity of contracts under Slovenian law, including the parties’ legal capacity and the absence of defects of consent. 3.2 Arbitrability Under Slovenian law, not all disputes may be referred to arbitration. Pursuant to the Slovenian Arbitration Act, a dispute may be submitted to arbitration only if the parties are free to settle the subject matter of the dispute. This means that matters involving rights or interests over which the parties cannot freely dispose are generally considered non-arbitrable. Certain matters involving personal status, family law, insolvency proceedings or other areas where manda - tory statutory rules apply and the parties do not have the power to dispose of the relevant rights are gener - ally excluded from arbitration. A dispute is considered arbitrable where the parties have the legal capacity and authority to freely deter - mine or settle the subject matter of the dispute. If the
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