Author: Jadranka Osrecak*
Published: August 2017
Increasing recourse to international commercial arbitration as a private means of settling disputes has raised many issues, one of which is the legal nature of arbitral awards. According to the Croatian Constitutional Court’s decision number U-III-410/1995, an arbitral award is an act of delegated jurisdiction which cannot be contested before the Constitutional Court. Awards cannot be re-litigated on their merits before a court, irrespective of the parties’ constitutional right to court protection.
However, the Croatian Constitutional Court in its precedential decision number U-III-669/2003, and others that followed, including decision numbers U-III-3000/2007, U-III-4618/2012, and U-III-2542/2014, decided that constitutional claims against decisions and awards of tribunals do fall within the jurisdiction of the Constitutional Court as part of the parties’ fundamental right to a fair trial.
These decisions by the Croatian Constitutional Court raise questions about whether the private will of the parties to resolve disputes via arbitration has been disregarded, whether the scope of judicial review has been excessively broadened, and whether arbitral tribunals have been effectively made redundant.
To grapple with the abovementioned issues, it is necessary to consider the definition of the rule of law, the concept of a social contract as a ground for establishment of civil society, and public policy. It is also necessary to tackle questions surrounding the arbitrability of the preliminary question of whether a tribunal has jurisdiction, and those surrounding the appointment of judges.
This paper is divided into four main parts. The first part considers the Croatian Constitutional Court’s case law. The second deals with various definitions of the rule of law and how they became relevant to arbitration. The third portion deals with issues of party autonomy with respect to the social contract, the primary role of which is to protect individuals and their fundamental rights. The social contract is also from where the courts draw their power, public policy, and the right to a fair trial as a fundamental human right. The final part examines whether parties can obtain better protection of their rights before courts or tribunals.
*Jadranka Osrecak is a Deputy of Municipal State Attorney at the Municipal State Attorney Office in Zagreb. She obtained a Masters of Law (LL.M.) Degree with Distinction from Queen Mary, University of London, where she has specialized in International and Comparative Commercial and International Energy Arbitration, and in International Trade and Investment Dispute Settlement. She is currently working at the State Attorney Office of the Republic of Croatia as part of the counsel team in investment arbitration cases. She is PhD candidate at the Faculty of Law, University of Zagreb.