INTRODUCTION TO SUPPLEMENTARY RULES FOR CORPORATE DISPUTES
The Arbitration Court recommends to the parties that wish to refer to the Supplementary Rules for Corporate Disputes to include the following arbitration agreement in the constitutional corporate document (e.g. a memorandum of association, articles of association):
- “Where permitted by law, all disputes that arose or will arise between the shareholders or between the company and its shareholders or between the company and a statutory body, the members of a statutory or other body of a company in connection with this document or other documents that this document refers to or in connection with their validity, in particular, disputes regarding the rights and obligations of a shareholder towards other shareholders or towards the company, the protection of a shareholder’s right, including his power to challenge the validity of a decision of a statutory body, decision of a member of a statutory or other body of the company, disputes between the company, the shareholders, the statutory bodies, members of a statutory or other body of the company related to the execution of their function, including their liability, shall be decided finally in accordance with the Rules of Procedure of the Arbitration Court of the Slovak Bar Association and its Attachment D – Supplementary Rules for Corporate Disputes.
- The effects of the arbitral award shall also apply to those shareholders who were, within the given time periods in line with Art. II(1) of Attachment D – Supplementary Rules for Corporate Disputes, designated as the Affected shareholders, regardless of whether they used their opportunity to enter into the arbitration as a party. Shareholders that were within the given time period designated as the Affected Shareholders undertake to accept the effects of the arbitral award issued in accordance with the Supplementary Rules for Corporate Disputes.
- The persons that ceased to be shareholders shall remain bound by this arbitration agreement.
- The arbitration agreement also applies to the company. The company undertales to include the arbitration agreement in the agreement on execution of the function of a statutory body or a member of a statutory or a different body. The company undertakes to always use the existing arbitration agreement as a defence against any claim related to disputes within the meaning of section 1 and raised at the general courts.
- The number of the arbitrators is [1 or 3].”
It is further recommended that the memorandum of association includes a provision, requiring all the shareholders to provide the company with an up-to-date delivery address or an agent for delivery, and under which the receipt of any document at this address or by this person will be assumed after a reasonable period.
OF THE RULES OF PROCEDURE OF THE ARBITRATION COURT OF THE SLOVAK BAR ASSOCIATION SUPPLEMENTARY RULES FOR CORPORATE DISPUTES
The parties may agree to apply the Supplementary rules for Corporate Disputes (hereinafter the “Supplementary rules”) attached to the Rules of Procedure. The Rules of Procedure shall continue to apply to arbitrations conducted under the Supplementary Rules to the extent that the Supplementary Rules do not contain more detailed or different provisions.
Scope of competence
(1) Applicability. The Supplementary rules shall apply if the parties have expressly referred to them in their Arbitration Agreement contained in the memorandum of association, in the articles of association, in the articles of incorporation, deed of incorporation, or if their application was expressly agreed upon in another corporate document or otherwise.
Classification of Affected shareholders
(1) Affected shareholders. In disputes requiring a single decision binding on all shareholders and the company and within which dispute a party to the arbitration wants to extend the effects of the arbitral award on all shareholders (hereinafter the “Affected shareholder”) and the company, without them being a party to the arbitration, the Affected shareholders shall have the right to join the proceedings either on the side of the claimant or the respondent, in accordance with the Supplementary rules. This also applies to disputes which require a single decision binding on specific shareholders or the company.
(2) The statement of claim and number of copies. In addition to the requirements set out in Article II(1) of the Rules of Procedure and Article VIII(1) of the Supplementary Rules, the statement of claim shall also include the designation of any shareholders or the company itself, to which the arbitral award shall extend, including the address for service of such designated persons. Without limiting the requirement of Article I(9) of the Rules of Procedure, the statement of claim shall be made in such number of counterparts so that each designated person can receive one copy.
(3) Later entry of the Affected shareholder into the proceedings. The Affected shareholders who were designated after the expiry of the period for their designation, specified in the Supplementary rules, may enter into the arbitration in accordance with Article IV(3) of the Supplementary rules.
Delivery of the statement of claim and the invitation to enter into arbitration
(1) Sending of the statement of claim to the designated persons by the claimant. In addition to sending the statement of claim to the respondent under Article II (4) of the Rules of Procedure, the Secretary shall also send the statement of claim to the shareholders and the company as designated by the claimant, inviting them to respond in writing within 30 days whether they are entering into the arbitration on the part of the claimant or the respondent.
(2) The designation of the Affected shareholders by the respondent. Within 30 days of the delivery of the statement of claim, the respondent may designate other Affected shareholders to which the arbitral award is to apply, including their address for service. The respondent shall supply the Secretary such request together with a sufficient number of copies of the statement of claim. Article III (1) of the Supplementary rules shall apply mutatis mutandis.
(3) The Secretary shall forward to the parties and to any designated Affected shareholders any statement of entry into the arbitration within the meaning of Article II(2) or Article IX(3) of the Supplementary rules.
Entry of the Affected shareholder into the arbitration
(1) Entry into the arbitration. If the Designated shareholders notify their entry into the arbitration within the time period under Article III or Article IX(4) of the Supplementary Rules on the side of the claimant or the respondent, they shall become a party to the arbitration with all the rights and obligations attached thereto, at the time when the Secretary accepts their notice of entry. From their entry into the arbitration, the designated Affected shareholders are entitled to designate other Affected shareholders. Article III (3) of the Supplementary Rules shall apply accordingly to the so subsequently designated Affected shareholders.
(2) Waiver of participation in the arbitration. If the designated Affected shareholder fails to notify its entry into the arbitration within the given time period, it shall be deemed to have waived its participation in the arbitration. The right to later entry into the arbitration within the meaning of Article IV (3) of the Supplementary Rules shall be retained.
(3) Conditions for later entry into the arbitration.
The designated Affected shareholders can enter into the arbitration at any time under the following conditions:
(a) they shall refrain from raising objections to the creation and composition of the arbitral tribunal, the place of the oral hearings or the language of the arbitration, if the above questions have already been determined prior to their entry into the arbitration; and
(b) they shall not require the repetition of procedural acts that had already been carried out or of other procedural acts if the given time period had already expired; and
(c) they shall accept the current state of arbitration at the time of their entry into the proceedings; or if
(d) the arbitral tribunal decides on their admission to the arbitration at their own discretion.
Notwithstanding the above-stated, Article IV(1) of the Supplementary Rules shall apply mutatis mutandis.
The status of the Affected shareholders who did not join the proceedings
(1) Information updates. The arbitral tribunal shall inform the designated Affected shareholders who did not join the arbitration, about the course of the arbitration by delivering copies of the parties’ written statements as well as the decisions and procedural resolutions of the arbitral tribunal to them, to the addresses provided by them, except if the Affected shareholders expressly waive such right to receive information, in writing. This also applies to any other communication of the arbitral tribunal with the parties, however, only to the extent that it may be presumed to be relevant for the decision of the Affected shareholder to join the arbitration later.
(2) Written submissions. The Affected shareholders who did not join the arbitration may request the arbitral tribunal to grant them a leave to file written submission on the subject-matter of the dispute and to the submissions of the parties to the dispute. The arbitral tribunal shall not be obliged to comply with such a request and must not comply with such a request if the oral hearing has already taken place regarding the given issue. If it approves such a request, it shall, at its reasonable discretion and having regard to the current state of the arbitration, set a time period for the requesting Affected shareholder to file its written submission. The arbitral tribunal shall deliver all submissions of the Affected shareholders, filed in accordance with this Article, to the parties to the Arbitration.
(3) Oral hearings. The Affected shareholders that did not join the arbitration shall be entitled to attend oral hearings only if all the parties to the arbitration have given their consent. If consent is given, the Affected shareholders may attend oral hearings only as observers, without the right to submit motions and present arguments.
The statement of claim
(1) Amendment, supplementation and withdrawal of the statement of claim. Expanding the relief sought in the statement of claim or a change in the subject-matter of arbitration (including any possible counterclaims), or an extension of the statement of claim to new shareholders ‘decisions, in disputes over shareholders’ decisions, is permitted only with the consent of all the Affected shareholders. A total or partial withdrawal of the statement of claim is admissible without the consent of the Affected shareholders, save that within 30 days of the notification of the intended withdrawal, the Affected shareholder raises an objection and the arbitral tribunal recognizes its legitimate interest in having the issue finally determined. Article VI (6) (e) and (f) of the Rules of Procedure shall continue to apply.
(1) Creation of a one member tribunal. If the arbitral tribunal is to consist of a single arbitrator, the parties shall jointly nominate the arbitrator. Article IV(2) of the Rules of Procedure shall apply accordingly to the nomination and appointment of a single arbitrator.
(2) Appointment of an arbitrator by the Board. If the Parties fail to reach an agreement on a single arbitrator within 15 days of being called upon to do so by the Arbitration Court, the Board shall appoint an arbitrator in accordance with Article IV(3) of the Rules of Procedure.
(1) Content of the statement of claim. If the arbitral tribunal is to consist of three arbitrators, the statement of claim, by contrast to Article II(1) of the Rules of Procedure, need not include the nomination of an arbitrator and if it does, it shall be deemed to be a proposal for a joint nomination by the parties on the side of the claimant.
(2) Creation of a three member tribunal. Unless otherwise agreed by the parties, the arbitrators of a three member tribunal shall be appointed in a way that the parties on the claimant’s side nominate one arbitrator jointly, and the parties on the respondent’s side nominate the other arbitrator jointly and the two arbitrators, after being confirmed by the President or the Board, jointly nominate the presiding arbitrator. Article IV(2) of the Rules of Procedure shall apply to the nomination and appointment of the presiding arbitrator mutatis mutandis. If either party or the two arbitrators fail to make such a nomination within 15 days of being called upon to do so by the Arbitration Court, the Board shall appoint the missing arbitrator or arbitrators pursuant to Article IV(3) of the Rules of Procedure.
Merger of jurisdictions in case of parallel proceedings
(1) Concurrence of multiple proceedings. If several arbitration proceedings were initiated with a subject-matter requiring a single decision binding on the parties and the Affected shareholders, Articles IX(2) to (4) of the Supplementary Rules shall apply.
(2) Inadmissibility of Later Arbitration. The arbitration which was first commenced (hereinafter referred to as the “Initial Arbitration Proceeding”) precludes the continuation of arbitration proceedings that were commenced later (hereinafter the “Later Arbitration Proceeding”). Later arbitration proceedings are inadmissible. The Board shall decide on the inadmissibility of the Later Arbitration Proceeding.
(3) Priority. The priority, out of a number of statements of claim brought, is determined by the moment of their delivery to the Arbitration Court. In order to determine the exact moment of receipt of the statement of claim by the arbitral tribunal, the statement of claim (not necessarily with the attachments) shall also be sent by e-mail. In case of doubt, the Secretary shall, at his own discretion, rule on priority. If the Secretary finds that a situation within the meaning of Article IX(1) of the Supplementary Rules has arisen, he shall duly inform the Parties and the designated Affected shareholders of the commenced arbitration proceedings.
(4) The claimant’s entry from the Later Arbitration Proceeding to the Initial Arbitration Proceeding. If the claimant from the Later Arbitration Proceeding has filed his statement of claim within the given time period for issuing a statement to enter into the proceedings under Article III(1) of the Supplementary Rules, the claimant may, within 14 days of the receipt of the decision on the inadmissibility of the Later Arbitration proceedings, notify the Secretary that it is entering into the First Arbitration Proceeding as a designated Affected shareholder, indicating the party on which side it wishes to appear in the First Arbitration Proceeding. In such a case, the time period for commencing proceedings within the meaning of Article III (1) of the Supplementary Rules shall be extended until the end of the period for notification within the meaning of the previous sentence. If the claimant from the Later Arbitration proceeding notifies the entry into the First Arbitration proceeding before the expiry of the notice period, the claimant may participate in the creation of the arbitral tribunal pursuant to Article VII or Article VIII of the Supplementary Rules and also in the First Arbitration Proceeding designate other Affected shareholders pursuant to Article IV(1) of the Supplementary rules.
Extension of effects of the arbitral award
(1) The effects of the arbitration award shall also apply to those Affected shareholders who have been designated as Affected shareholders within the given time periods, regardless of whether they have exercised their right to enter into the arbitration proceedings as a party. Shareholders designated as Affected shareholders within the given time periods shall be bound by an arbitral award issued in accordance with the Supplementary Rules.
Costs of arbitration
(1) Rules regarding the costs of arbitration. Attachment A to the Rules of Procedure shall apply to the decision on costs of arbitration, whereby the Affected shareholders who have not entered into the arbitration as a party are not entitled to reimbursement of costs.
(2) Quantification of the costs of arbitration. The costs shall be calculated in accordance with the Attachment to the Rules on Costs of Arbitration (List of Fees) to Attachment A to the Rules of Procedure, with the designated Affected shareholder being considered a party.