AmCham Roundtable on Judicial Practice in Commercial Matters

AmCham Roundtable on Judicial Practice in Commercial Matters

Tijana Kojovic, managing partner of BDK Advokati, co-moderated with Milan Lazic, partner in Karanovic & Partners, the AmCham Roundtable on Judicial Practice in Commercial Matters. The participants to the roundtable were Nela Kuburovic, the Minister of Justice, Vesna Lazarevic, Deputy President of the Administrative Court, Radmila Obucina, President of the Commercial Court of Appeals, Jovan Jovanovic, President of the Commercial Court in Belgrade, and Tatjana Jeremic, President of the Second Basic Court in Belgrade. The event was attended by representatives of the judiciary, lawyers and members of the business community.

Please find below Tijana’s recap of the roundtable:

The discussion focused on three interrelated topics: efficiency of the proceedings, unification of case law, and specialisation and education of judges.

The on-going process of digitalisation is expected to greatly contribute to the improvement of efficiency of the proceedings. The Administrative Court has already implemented the e-court system which allows e-filing and e-service of process. The extension of the e-court to enforcement proceedings is expected in 2020, while its application in commercial litigation is expected in the course of 2021. The next steps desired by the users of the court system include creation of an electronic case file that would be accessible to and downloadable by the parties, as well as full digitalisation of court decisions with the aim of making them available online and searchable by keywords.

The issue whether and to what extent there is a need for more judges and judicial clerks remains controversial. However, there is a consensus on the need to improve the case management by applying techniques which are already available under the law. One of the procedural phases which deserves to be tightened up in practice is preliminary hearing, which should be used to determine disputed and undisputed facts and set the roadmap for further proceedings. It was proposed that case management training should be stepped up.

The need for a more unified decision-making in cases involving substantially similar facts is part of the right to a fair trial. Under the existing system, trial and appellate judges are not legally bound to apply the legal positions adopted by the Supreme Court of Cassation or the legal positions adopted at sessions of all judges of their own courts. The Ministry of Justice has put forward a proposal for a constitutional amendment which leaves it to a statute to determine the manner of achieving unification of case law. Until the new statutory solution is devised, a greater respect for the existing case law could be achieved by promoting the culture of writing more elaborate reasonings of the court decisions. The judge should, if not as a matter of legal obligation, then as a matter of proper reasoning, refer to the existing case law of the Supreme Court of Cassation and appellate courts, if there is any, and elaborate why it deems that case law applicable or inapplicable in the case at hand.

The participants to the roundtable expressed different views on the topic of specialisation. Judge Vesna Lazic from the Administrative Court felt that specialisation of the judges of that court would create disbalance on their respective dockets. Branislava Goravica from the High Judicial Council, however, observed that specialisation would not necessarily mean that certain judges would be restricted to the cases from their field given that the pool of non-specialised cases could be distributed among all judges depending on their docket.

Tijana Kojovic, managing partner of BDK Advokati, co-moderated with Milan Lazic, partner in Karanovic & Partners, the AmCham Roundtable on Judicial Practice in Commercial Matters. The participants to the roundtable were Nela Kuburovic, the Minister of Justice, Vesna Lazarevic, Deputy President of the Administrative Court, Radmila Obucina, President of the Commercial Court of Appeals, Jovan Jovanovic, President of the Commercial Court in Belgrade, and Tatjana Jeremic, President of the Second Basic Court in Belgrade. The event was attended by representatives of the judiciary, lawyers and members of the business community.

Please find below Tijana’s recap of the roundtable:

The discussion focused on three interrelated topics: efficiency of the proceedings, unification of case law, and specialisation and education of judges.

The on-going process of digitalisation is expected to greatly contribute to the improvement of efficiency of the proceedings. The Administrative Court has already implemented the e-court system which allows e-filing and e-service of process. The extension of the e-court to enforcement proceedings is expected in 2020, while its application in commercial litigation is expected in the course of 2021. The next steps desired by the users of the court system include creation of an electronic case file that would be accessible to and downloadable by the parties, as well as full digitalisation of court decisions with the aim of making them available online and searchable by keywords.

The issue whether and to what extent there is a need for more judges and judicial clerks remains controversial. However, there is a consensus on the need to improve the case management by applying techniques which are already available under the law. One of the procedural phases which deserves to be tightened up in practice is preliminary hearing, which should be used to determine disputed and undisputed facts and set the roadmap for further proceedings. It was proposed that case management training should be stepped up.

The need for a more unified decision-making in cases involving substantially similar facts is part of the right to a fair trial. Under the existing system, trial and appellate judges are not legally bound to apply the legal positions adopted by the Supreme Court of Cassation or the legal positions adopted at sessions of all judges of their own courts. The Ministry of Justice has put forward a proposal for a constitutional amendment which leaves it to a statute to determine the manner of achieving unification of case law. Until the new statutory solution is devised, a greater respect for the existing case law could be achieved by promoting the culture of writing more elaborate reasonings of the court decisions. The judge should, if not as a matter of legal obligation, then as a matter of proper reasoning, refer to the existing case law of the Supreme Court of Cassation and appellate courts, if there is any, and elaborate why it deems that case law applicable or inapplicable in the case at hand.

The participants to the roundtable expressed different views on the topic of specialisation. Judge Vesna Lazic from the Administrative Court felt that specialisation of the judges of that court would create disbalance on their respective dockets. Branislava Goravica from the High Judicial Council, however, observed that specialisation would not necessarily mean that certain judges would be restricted to the cases from their field given that the pool of non-specialised cases could be distributed among all judges depending on their docket.