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1. Do you have a specific procedure or procedures for bringing “opt-in” class actions? If so, please outline such procedure(s) and their key features.
According to the relevant laws
1
Civil Procedure Act of FBiH ("Official Gazette FBiH", nr. 53/2003, 73/2005, 19/2006 and 98/2015); Civil Procedure Act of RS ("Official Gazette RS", nr. 58/2003, 85/2003, 74/2005, 63/2007, 105/2008 - decision US, 45/2009 –); Civil Procedure Act of BD BiH ("Official Gazette BD BiH", nr. 28/2018).
of Bosnia and Herzegovina,
2
Bosnia and Herzegovina (BiH) consists of two separate and distinct administrative entities: the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS). Formally, Brčko District is a unique administrative unit of local government under the sovereignty of BiH. The two entities and the Brčko District have their own governmental structures as well as legislation and regulations, which means that claims for protection of collective interest, as well as some other areas of law, are subject to legal regulations at entity level and relevant state legislation, depending on applicable law.
class action procedures, as such, do not exist in Bosnia and Herzegovina. However, actions with a larger number of claimants can be initiated, as follows:
In litigation proceedings several persons can sue one or more defendant in one lawsuit, under certain conditions, but such persons must all individually have the status of claimants (e.g. each of them must individually grant a power of attorney to the attorney representing them). Therefore, these are not class action proceedings, but ordinary civil proceedings with several claimants;
A special procedure for claims for protection of collective interests exists, whereby associations, bodies, institutions or other organizations established in accordance with the law, which, as part of their registered or regulated activity, protect the statutory collective interests and rights of citizens, may, when such authorization is expressly provided by a special law and under the conditions provided by law, file a lawsuit (claim for the protection of collective interests and rights) against a natural or legal person who, by performing a certain activity or work in general, acts, including omission, seriously violates or seriously endangers such collective interests and rights. The interests may be interests related to the human environment and the environment, then moral, ethnic, consumer, anti-discrimination and other interests guaranteed by law and which must be seriously violated or seriously endangered by the activity or treatment of persons against which the lawsuit is filed.
In such proceedings, the claimant (representing the collective interests) can request the court to: (i) determine that the protected collective interests and rights of persons the claimant is authorized to protect have been violated or endangered by the defendant; (ii) prohibit actions by the defendant which endanger or violated the interests or rights of persons the claimant is authorized to protect; (iii) to order the defendant to undertake actions to remedy the negative consequences which have occurred or may occur due to the unlawful behaviour; and (iv) for the judgement to be published in the media at the expense of the defendant.
However, no damages are awarded in such proceedings, and if individual natural or legal persons consider that they have suffered damage because of the actions of the defendant, they must initiate separate proceedings for compensation of damage, whereby they will rely on the judgement in the proceedings for protection of collective interests.
2. Do you have a specific procedure or procedures for bringing “opt-out” class actions? If so, please outline such procedure(s) and their key features.
Please refer to the answer under question number 1.
3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)? If so, please summarise those rules.
Please refer to the answer under question number 1.
In case of lawsuits for protection of collective interests, the law provides that associations, bodies, institutions or other organizations established in accordance with the law, which, as part of their registered or regulated activity, protect the statutory collective interests and rights of citizens, may, when such authorization is expressly provided by a special law and under the conditions provided by law, file a lawsuit (claim for the protection of collective interests and rights) against a natural or legal person who, by performing a certain activity or work in general, acts, including omission, seriously violates or seriously endangers such collective interests and rights.
The interests may be interests related to the human environment and the environment, then moral, ethnic, consumer, anti-discrimination and other interests guaranteed by law and which must be seriously violated or seriously endangered by the activity or treatment of persons against which the lawsuit is filed.
4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
As stated under question 1, class actions as such do not exist in Bosnia and Herzegovina, and there no official published data on the number of claims with several claimants in Bosnia and Herzegovina. We have no information about any pending changes that may relate to class actions.
5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims? If so, please describe these restrictions.
Please refer to the answer under question number 1.
6. What types of relief are available, i.e., damages and/or injunctive relief?
Please refer to the answer under question number 1, as no class actions as such exist in Bosnia and Herzegovina.
However, in proceedings with several claimants and proceedings for protection of collective interests generally both damages and injunctive relief are available (however in proceedings for protection of collective interests is completed the affected persons must initiate separate proceedings for compensation of damage after the proceedings for protection of collective interests are completed).
7. On what basis are damages calculated i.e., compensatory and/or some other basis?
Damages are generally calculated on a compensatory basis in proceedings in Bosnia and Herzegovina.
8. Are punitive or exemplary damages recoverable?
Punitive or exemplary damages are not recoverable in Bosnia and Herzegovina.
9. Will domestic law need to be changed to comply with the Representative Action Directive?
As Bosnia and Herzegovina is not a part of the European Union, the Representative Action Directive is not yet applicable in respect of Bosnia and Herzegovina.
10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
Please refer to the answer under question number 1.
11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures? Are there any territorial limitations to who may be members of the class?
Please refer to the answer under question number 1.
12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be? Are there any other criteria to be met for the court to approve use of the procedure?
Please refer to the answer under question number 1.
13. Do you have specialist courts for these procedures?
Please refer to the answer under question number 1.
As a general note, there are no specialist courts for procedures with several claimants or for proceedings for protection of collective interests.
14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
Please refer to the answer under question number 1.
15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
Please refer to the answer under question number 1.
16. Can arbitration clauses lawfully contain class action waivers?
Arbitration clauses cannot directly preclude parties from participating in the procedure for claim for protection of collective interests.
As stated previously, there are no class actions as such in the BiH legal system. However, as a general note, the special procedure for claim for protection of collective interests (explained previously) is conducted by associations, bodies, institutions or other organizations established in accordance with the law, which, as part of their registered or regulated activity, protect the statutory collective interests and rights of citizens. As a rule, there would be no prior agreement between the associations, bodies, institutions or other organizations and the defendant (natural or legal person) that would provide for arbitration in advance.
However, no damages are awarded in such proceedings, and if individual natural or legal persons consider that they have suffered damage because of the actions of the defendant, they must initiate separate proceedings for compensation of damage, whereby they will rely on the judgement in the proceedings for protection of collective interests. In this dispute, there is no obstacle for the individual natural or legal persons to obtain damages either before arbitration or before a court, relying on the judgment in the proceedings for protection of collective interests.
17. Are contingency fee agreements permissible?
Generally, contingency fee agreements are not permissible for attorneys in Bosnia and Herzegovina.
18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs? Are adverse costs awards capped? If so, at what level(s)?
Generally, in Bosnia and Herzegovina, the losing party ordinarily has to pay the winnings party’s costs. The costs are capped in accordance with the applicable attorneys’ tariffs in Bosnia and Herzegovina, depending on the value of the dispute.
19. Is litigation funding of class actions permissible? If so, how prevalent is litigation funding?
As stated previously, class actions as such do not exist in Bosnia and Herzegovina.
However, in general litigation funding is not regulated by the relevant laws in Bosnia and Herzegovina, and as it is not expressly prohibited it can be considered that litigation funding of claims may be permissible.
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