Interim measures in Bosnia and Herzegovina

1.1.1 Bosnia and Herzegovina (BiH) is a state composed of two entities, the Republic of Srpska (RS) and the Federation of BiH (FBiH). Brcko District (BD) also exists as a unit with a separate legal regime. BD is a unique administrative unit of local government under the sovereignty of BiH.

1.2.1 BD, RS and FBiH each have separate legal regimes. As a result of this division, legislation can be adopted on three different levels: the state (BiH) level, the entity (RS or FBiH) level and the BD level. Each entity and BD in BiH has the power to adopt its own legislation. At state level, BiH can adopt laws on its own competency, as well as laws which serve as a legal framework for the adoption of legislation on a lower level by the relevant entity or BD.

1.2.2 In FBiH there is an additional cantonal level on which laws and regulations can be adopted. FBiH consists of ten cantons which are secondary units of local jurisdiction.

1.2.3 According to the constitutional division of competencies, the matter of interim measures falls within the competence of RS and FBiH.

1.2.4 Interim measures are mainly governed by the Law on Civil Procedure. The Law on Civil Procedure in both entities (RS and FBiH) provides identical provisions regarding interim measures, being:

1. (i) the Law on Civil Procedure FBiH 1 Official Gazette of FBiH no. 53/03; 73/06; 19/06; 98/15. ; and
2. (ii) the Law on Civil Procedure RS 2 Official Gazette of RS no. 58/03; 85/03; 74/05; 63/07; 105/08; D.C.C 45/09, 49/09, 61/13. .

2.1.1 Under the relevant RS/FBiH Law on Civil Procedure, interim measures must be connected to pending or future main proceedings, i.e. interim measures are used to secure claims which can be brought before courts in FBiH/RS. Accordingly, as a rule, requests for interim measures can only be filed in RS/FBiH if the courts have jurisdiction for the relevant court proceedings.

2.1.2 In that respect, although this situation is not expressly prescribed by the legislation, it is unlikely that an interim measure could be obtained before courts in Bosnia and Herzegovina in support of court proceedings in other countries.

2.1.3 However, in the event that an interim measure is adopted before a court in another country, it can be requested that such decision is recognised and enforced in BiH under the relevant BiH rules on Private International Law, provided that the matter does not fall under the exclusive jurisdiction of the courts in BiH.

2.2.1 The court which is competent to hear the first instance court proceedings regarding the relevant claim shall also decide upon an application for an interim measure. Therefore, if the application for an interim measure is made prior to or during the initial court proceedings, the decision on the interim measure is issued by the court of first instance. This is also the case if the application is made following the completion of the court proceedings but before enforcement has been completed.

2.2.2 If the application for an interim measure is filed after the main case has been submitted to a higher court for determination, the application for an interim measure should be made directly to the higher court and the decision on the interim measure will be issued by the higher court.

3.1.1 The types of interim measures available in the BiH are interim measures relating to: (i) monetary claims; (ii) non-monetary claims relating to particular property or part(s) of property; and (iii) the securing of other rights or regarding the maintenance of an existing state of affairs.

3.2.1 Interim measures regarding monetary claims include:

• prohibiting the respondent from alienating, hiding, encumbering or disposing of certain property, the value of which is sufficient to ensure the applicant’s security. Such prohibitions are recorded in the appropriate public register;
• removing property from the possession of the respondent and depositing it with the court, if possible, or handing over possession of such property to a third party;
• prohibiting debtors of the respondent from paying, and prohibiting the respondent from receiving or disposing of, any payments or payments in goods. This prohibition may be imposed on any other person from whom the respondent can require payment or delivery of goods; and
• registering a lien against the respondent’s property up to the monetary value of the amount claimed in the proceedings by the applicant.

3.3.1 Interim measures regarding non-monetary claims relating to particular property or part of property include:

• prohibiting the respondent from alienating, hiding, encumbering or disposing of the asset that is the subject of the claim. If the property is located within the territory of BiH, this prohibition will be recorded in the relevant public register;
• removing property from the possession of the respondent and depositing it with the court, if possible, or handing over possession of such property to a third party;
• prohibiting the respondent from taking actions that could cause damage to the property or ordering the respondent to perform certain actions necessary to maintain the property/the existing state of the goods; and
• authorising the applicant to undertake certain actions, depending on the case.

3.3.2 Interim measures regarding the securing of other rights, or regarding the maintenance of an existing state of affairs include:

• prohibiting the respondent from undertaking certain actions or ordering the respondent to take certain actions in order to maintain the status quo or to prevent damage to the applicant;
• authorising the applicant to undertake certain actions;
• entrusting certain assets of the respondent to a third party in order to ensure that the third party can maintain and care for such assets;
• postponing the enforcement of rights against the applicant by third parties, subject to the conditions imposed by law which regulate the enforcement procedure 3 Law on Enforcement Procedure before the Court of BiH (Official Gazette of BiH no. 18/03); Law on Enforcement Procedure of FBiH (Official Gazette of FBiH no. 32/03, 52/03, 33/06, 39/06, 39/09, 35/12); Law on Enforcement Procedure of RS (Official Gazette of RS no. 59/03, 85/03, 64/05, 118/07, 29/10, 57/12, 6798/14); Law on Enforcement Procedure BD (Official Gazette of BD no. 39/13). ; and
• ordering other measures which the court deems necessary to ensure that the applicant’s claim is secured.

3.4.1 The interim measure sought will be granted if:

• the applicant is able to establish, on the balance of probabilities, the existence of its claim or right against the respondent. The level of probability is determined on a “case by case” basis, depending on whether the court considers that the claim is more likely than not to be justified. The court will take into account the evidence provided by the applicant and decide on its own interpretation of the evidence whether the claim is probable; and
• there is a risk that without such an interim measure the respondent could prevent or significantly restrict the enforcement of any judgment against it, specifically by: (i) selling, hiding or encumbering property; (ii) disposing of its assets or changing the existing state of its assets in some other way; or (iii) taking action that could otherwise cause harm to the applicant.

Form of the request

4.1.1 The application should be submitted in written form unless it is related to proceedings that are ongoing, in which case the application may be made orally at a court hearing.

Content of the application

4.1.2 In its application the applicant must explain: (i) the nature of its claims; (ii) the basis on which the interim measure is sought; and (iii) specify the type of interim measure that is sought, including the means by which such an interim measure should be applied. The application must also specify the facts on which the claim is based and provide evidence in support of such claims if possible. The evidence should demonstrate that the main claim is probably well-founded and that there is a risk that damage will occur to the applicant or that the claim will not be enforceable (if the applicant is successful in the court proceedings) due to the respondent’s actions. In addition, the applicant may be obliged to provide security for the compensation of damage which may be caused to the respondent by the interim measure, or alternatively provide evidence that it is not able to give security, or that no damage will occur to the respondent as a result of the interim measure.

4.2.1 Applications for interim measures are usually made on a ‘with notice’ basis, whereby the application for the interim measure is delivered to the respondent by the court prior to the court’s decision. The respondent is notified by the court that it may submit a written response within eight days of receiving the notice and prior to the court hearing on the interim measure.

4.2.2 It is possible for the applicant to submit its application for an interim measure to the court on a ‘without notice’ basis (where the applicant is not given advance notice of the application prior to the court’s decision). The applicant must demonstrate to the court that its request for an ex parte interim measure is reasonable and urgent and that the purpose of the interim measure would otherwise be lost if notice were given to the respondent. In this case, the court would deliver its decision promptly, before notifying the respondent, and the respondent then has the option of challenging the decision to order an interim measure within three days of receiving it. If the respondent challenges the decision, the court must schedule a hearing within the next three days. After the hearing, the court will either withdraw the order granting the interim measure or issue a new decision confirming the interim measure.

Evidence

4.3.1 No special evidential requirements exist in respect of applications for interim measures. All forms of evidence that are acceptable in the court proceedings are acceptable in the interim measure proceedings as well (such as documentary evidence, hearing of parties, witness testimony, expert witnesses). In ex parte proceedings, generally, only documentary evidence is used.

Standard of proof

4.3.2 The applicant does not have to fully prove its case. As set out in paragraph 3.4.1 above, the applicant needs only to establish, on the balance of probabilities, that its claim is more likely than not to be justified, as well as that there is a danger that damage will occur to the applicant or that the court’s decision will not be enforceable due to the respondent’s actions if no interim measure is ordered.

5.1.1 As mentioned in paragraph 4.2 above, interim measures are usually ordered after having heard the respondent, which is notified of the application and has the right to submit a written response within eight days. In case of an ex parte injunction, the respondent may challenge the order within three days of receiving it.

5.2.1 The respondent can ask the court to suspend the effect of an order granting an interim measure at any time if circumstances have changed such that the interim measure imposed is no longer necessary.

5.2.2 The court may also lift its order for an interim measure if:

• the respondent provides security to the applicant, for example by way of depositing with the court the amount owed, including all interest and costs;
• the respondent is able to show, supported by evidence, that at the time the decision to impose an interim measure was made, the underlying claim had already been paid or secured;
• there is a valid court decision by which it is determined that there is no legal basis for the underlying claim; or
• the basis for the underlying claim no longer exists.

5.3.1 The respondent is entitled to compensation for any damage suffered caused by the imposition of the interim measure, where it can be established that the interim measure was unfounded or where it was not sufficiently justified by the applicant.

5.4.1 The respondent is further protected by the obligation on the applicant to provide security if requested by the respondent or by the court. In the event such a request is made, the interim measures sought will be imposed only if the applicant, within the time set by the court, provides security for the damage that could occur to the respondent as a result of the interim measures being imposed, under the provisions of the Law on Enforcement Procedure 4 Article 269(2). . If the applicant is not in a financial position to provide security, it can request that the court relieves it of this obligation. Also, the applicant can attempt to establish that no security is necessary as no danger will occur to the respondent due to the interim measure.

6.1.1 Interim measures can be applied for before initiating court proceedings, during the court proceedings, and after the court proceedings prior to the enforcement of any judgment.

6.2.1 The duration of the interim measure procedure depends on the specific circumstances of the case and the court involved. However, in general, in without notice (summary) proceedings, the first court decision is issued between five to fifteen days from filing the motion. In with notice proceedings the first court decision is issued between one to two months from filing the motion. These decisions are then subject to second-instance proceedings which can take several months.

6.3.1 Once the interim measure has been ordered by the court, it remains in force until the court decides otherwise, but no longer than 30 days from the date when the conditions to make enforcement possible have been fulfilled.

6.3.2 When an interim measure is ordered before the main claim has been filed, the court will grant the applicant a period of up to 30 days from the date of ordering the interim measure within which the claim must be filed. The applicant must provide proof that proceedings have been initiated to the court.

6.3.3 However, the court may adopt a new decision on the interim measure at any time (for example, to withdraw the interim measure if circumstances change).

6.3.4 If a claim is not successful in the court of first instance, the competent court of second instance has a discretion to leave the interim measure in place until a decision on the claim is reached in that court.

7.1.1 The costs of applying for an interim measure are paid by the applicant. However, if the application for an interim measure is filed during proceedings, the court that is competent to decide upon the claim will decide if the applicant’s costs of issuing and enforcing the interim measure should be paid by the respondent. This decision will be made at the end of the proceedings.

7.1.2 Court costs are calculated by a tariff which is set by the relevant law on court fees, while the costs of professional representation are calculated by a tariff of the relevant attorney bar association. The tariff determines these costs by reference to the value of the dispute. In addition, in FBiH the maximum amount of professional costs which can be reimbursed is capped at the average value of one month’s salary per action. There is no such limit in RS.

7.2.1 The court can order that the court fees and professional costs must be reimbursed by one party to another. The usual rule is that the successful party’s costs will be reimbursed by the losing party.

8.1.1 According to the Law on Civil Procedure 5 Article 282, Law on Civil Procedure. , the respondent has the right to appeal a decision ordering the imposition of an interim measure upon it, and the applicant can appeal if its request for interim measure is rejected.

8.1.2 The appeal must be made within eight days of receipt of the court’s decision. The appeal must be submitted to the court of first instance and served on the original applicant, who has the right to submit a response to the appeal within three days of receipt of notice of the respondent’s appeal. These documents are forwarded to the court of second instance who hears any appeals on orders for interim measures. The court of second instance decides upon the respondent’s appeal within 15 days of the response to the respondent’s appeal or, if no response is submitted, after the expiry of the deadline by which the response to the appeal should have been submitted to the court of first instance.

8.1.3 Where the underlying claim has already been submitted to a higher court for determination when the application for an interim measure is made, the application for an interim measure should be made directly to the higher court and the higher court will make the decision. If the decision is made by the higher court, no appeal is possible.

8.2.1 The order granting an interim measure can be modified or revoked if circumstances change, for example, if the circumstances giving rise to the need for an interim measure no longer exist. If circumstances change and there is a reason to modify or revoke the interim measure, the respondent must make an application to the court requesting the modification or revocation and explaining the change in circumstances that warrants the court taking further action.

9.1.1 The interim measure is implemented and enforced by the court that would be competent to implement the execution and enforcement of a final judgment. The manner in which the interim measure will be enforced depends on the type of measure granted. For example, interim measures for monetary claims can be enforced by freezing the relevant bank accounts, interim measures to prohibit the disposal of real property can be enforced by ordering registration of the ban in the relevant land registers, and the respondent can be ordered to undertake or to abstain from undertaking certain actions.

9.2.1 Interim measures issued by foreign courts do not have automatic effect, therefore any foreign orders or judgments are subject to the process of recognition of foreign court decisions. The applicant must submit a request for recognition of the foreign interim measure to the competent court in BiH.

9.2.2 The courts in BiH will recognise a foreign court judgment if it satisfies the following conditions:

• the foreign judgment is legally valid and enforceable in the state where it was rendered. In this regard, the person requesting the recognition must submit confirmation from the competent foreign body on the enforceability of the judgment;
• the party against which the foreign judgment was rendered was able to participate in the proceedings. If the party was unable to participate due to procedural irregularities, the judgment will not be recognised. The party will be deemed to have been unable to participate in the proceedings if the notification, action or resolution by which the proceedings were initiated was not personally delivered, or personal delivery was not attempted, unless the party engaged in a discussion regarding the merits of the proceedings with the opposing side;
• the subject matter of the foreign judgment does not fall within the exclusive competence of a court or other body in BiH;
• the competent court in BiH has not already adopted an enforceable judgment on the subject matter of the foreign judgment and/or the competent court in BiH has not already recognised another foreign judgment on the same subject matter;
• the foreign judgment is not contrary to the constitution of BiH and its basic principles, as well as the constitution of the FBiH and the constitution of the RS, respectively, and their respective basic principles, and/or to public order; and
• there is reciprocity of recognition of foreign judgments between BiH and the foreign state wherein the judgment has been rendered. Reciprocity is presumed until established otherwise. In cases where the existence of reciprocity is doubtful, the court will request clarification of the reciprocity from the Ministry of Justice. The courts generally request factual, rather than legal, reciprocity; however, no clear case law is available regarding the recognition of foreign judgments.

10.1.1 This matter is not regulated by the relevant legislation and no practice exists in this regard.

10.2.1 BiH legislation does not contain any provisions regarding the jurisdiction of the arbitral tribunal or its competence to order interim measures in an arbitration. For this reason, parties should set out the arbitral tribunal’s competence to rule on its own jurisdiction in the arbitration agreement.

10.2.2 BiH legislation also does not contain any provisions regarding the power of an arbitral tribunal to order interim measures. However, the parties may agree that the arbitral tribunal should have the right to impose interim measures, provided that they are in accordance with the mandatory provisions of BiH laws, such as rules on the exclusive competence of the BiH courts.

10.3.1 The relevant legislation does not regulate the recognition of interim measures of foreign arbitral tribunals and no practice exists in that regard. Bosnia and Herzegovina is a party to the 1958 New York Convention which governs the recognition and enforcement of foreign arbitral awards. However, interim orders are not final and, for this reason, it is possible that they would not qualify as awards enforceable under the said convention.

CMS Reich-Rohrwig Hainz d.o.o.
Ul. Fra Anđela Zvizdovića 1
71000 Sarajevo, Bosnia and Herzegovina