ARBITRABILITY OF CONCESSION DISPUTES IN SLOVENIA

Abstract

A fundamental question at the beginning of any arbitration is whether any public policy rules prohibit the dispute to be decided by arbitration. As arbitration became a widely accepted alterna- tive to litigation in national courts, the scope of arbitrable disputes was expanded to allow for a wide range of disputes to be resolved through arbitration. The authority to restrict arbitrability lies with the legislator, which generally does so only in cases where it is war- ranted by serious public policy concerns. The Slovenian Arbitration Act is a modern act that provides for a wide concept of arbitrabil- ity. When the Slovenian legislator unexpectedly tried to restrict the arbitrability of concession disputes by adopting an authentic inter- pretation of law restricting arbitrability for concession disputes, it created significant uncertainty for the parties who have included an arbitration clause in their concession contracts or who were consid- ering doing so. The Slovenian Constitutional Court confirmed that the authentic interpretation of law cannot be used to give binding interpretations on how to rule in specific cases because it would undermine the core principle of the separation of powers and inde- pendence of judges. While it has now been settled that the authentic interpretation should not be applied, it nevertheless remains a skel- eton in the legislator’s closet since the legislator had not expressly invalidated or retracted the authentic interpretation.