SLOVENIA Law and Practice Contributed by: Vid Kobe and Peter Gorše, Schoenherr Slovenia
proceedings), the secured creditors may acquire the underlying collateral. As a general rule, under Slovenian law (including in respect of financial col- lateral arrangements), any surplus of collateral – ie, excess value (over the amount of the receivable secured by the (financial) collateral) – obtained by appropriation or otherwise should be returned to the security provider. 6.2 Foreign Law and Jurisdiction Generally – in line with the principle of freedom of contract – the parties are free to agree on the govern- ing law of the contract. In accordance with Regula- tion (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (“Rome I”), it should also be possible – as a general rule – to agree that a law with- out a specific connection to the case will govern the agreement. Notwithstanding, the agreement on the choice of law will not always result in the chosen law being applicable/upheld. Most notably, under Rome I, effect may be given to the “overriding mandatory provisions” (as defined in Rome I), whereas certain (in particular) in rem aspects of the security interests are not susceptible to a choice of law. By the same token, the parties are in principle free to agree on the submission to a foreign jurisdiction, and such provisions will be valid, binding and enforce- able under Slovenian law subject to certain limitations and exceptions. In this respect, it is unclear whether a jurisdiction clause allowing only certain parties the right to bring an action in different jurisdictions (ie, a hybrid jurisdiction clause) is valid under the terms of Regulation (EU) No 1215/2012 on jurisdiction, the recognition and enforcement of judgments in civil and commercial matters (the “Brussels Regulation”) and/ or the Slovenian legislation on private international law and procedure. It is also unclear whether such juris- diction clause would be considered to confer exclu- sive jurisdiction on a particular court. A waiver of sovereign immunity would generally be upheld in Slovenia under certain circumstances. The extent to which the waiver would be upheld will depend on different factors, such as: • the specific terms of the waiver;
• applicable international treaties; • the type of immunity in question (immunity from prosecution or immunity from execution); • the person granting the waiver; and • the type of assets in question. Under Slovenian law, certain assets (in particular infra- structure assets and assets required for the perfor- mance of public service obligations) may be exempt, and thereby immune, from enforcement/attachment. 6.3 Foreign Court Judgments Judgments rendered by a court of state within the ter- ritorial scope of application of the Brussels Regulation are generally recognised “without any special proce- dure being required”. Enforcement of such judgments is, inter alia, subject to the limitations set forth in the Brussels Regulation (including, without limitation, Arti- cles 34 and 35 thereof, referring amongst others to ordre public). Recognition and enforcement of the judgments or other decisions of state courts outside the territorial scope of application of the Brussels Regulation must be assessed on a case-by-case basis. Slovenian legis- lation on private international law and procedure gen- erally requires reciprocity for the acknowledgement of judgments with the relevant foreign jurisdiction. Accordingly, absent a ratified convention applicable between Slovenia and the relevant foreign jurisdiction on the mutual recognition of judgments rendered by the courts of the other state, a foreign judgment may not be recognised or enforced in Slovenia. For the sake of completeness, Slovenia ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958 (the “New York Convention”), as well other major multilateral conventions in the field of interna- tional commercial arbitration such as the 1961 Euro- pean Convention on International Commercial Arbi- tration and the 1965 Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Conven- tion”). Hence, foreign arbitral awards rendered in a contracting state should generally be recognised and enforced by Slovenian courts in accordance with the
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