Current Case Law of the National Courts Regarding Arbitration : Bulgaria

Current case law and arbitration practise in Bulgaria is very arbitration "friendly." The published paper is collection of annotated most interested judgments of the courts regarding arbitration issues, including notes and comments regarding the particular court decisions with summaries of the factual and legal bases of the particular cases citing the original provisions of laws applied in the decisions. Most of the annotated judgments are rendered in the annulment proceedings, another when recognition and enforcement of foreign awards has been applied in Bulgaria. The Bulgarian practise grants parties of arbitration high degree of autonomy. Some of the particular decisions are very interesting. For example the decision of the Supreme Cassation Court from 2009 states that only a final arbitral award is binding for the parties to arbitral proceedings. It means that only final arbitral awards may be recognized and enforced in Bulgaria, not partial or interim awards (incl. jurisdictional awards, awards on interim measures etc.). This is, unfortunately, not an exception in civil law countries. Another decision (as from 2007) confirms the typical civil law approach on jurisdiction, e.g. that jurisdiction is not a contractual issue but it is a part of the material sovereignty. Therefore not only foras (courts) but arbitral tribunals as well are entitled and often obliged to check their jurisdiction ex officio (not only when party challenges the jurisdiction. At the same time any effects of arbitration agreements and arbitral awards to third parties has been excluded. In the particular decision as of 2007 the court stated that when a court has ascertained as part of enforcement proceedings that grounds exist for the enforcement of a judgment (arbitral award), the court must examine the party benefiting from the awarded right and the party against which such a right exists (right of action and suability). A writ of execution may only be issued in favour of a party that is found to possess a right against a party that must submit to the enforcement of a judgment. The enforcement of a judgment may be demanded by a person other than a party to arbitral proceedings, specifically, by a party that has been awarded a right under an arbitral award. Such a party, however, must demonstrate its legal succession regarding such a right, where the claimant is subject to the duty to submit evidence (burden of proof). A court examines such a legal succession in enforcement proceedings as part of the exercise of its official authority. In another decision as from 2007 the Bulgarian Sofia Municipal [City] Court confirmed the almost internationally recognised view that the reasons for refusing recognition and enforcement according to Article V(1) of the New York Convention are examined by a court only based on an objection raised by a respondent (liable party). The reasons for refusing recognition and enforcement according to Article V(2) of the New York Convention are examined by a court based on its competence (ex officio). In recognition and enforcement proceedings, arguments or evidence on the merits are inadmissible if such arguments have not been used by the respondent in the relevant arbitral proceedings despite the fact that such arguments or evidence could have been used. Th is also applies to facts that may indicate that a criminal offence has been committed (for instance document forgery). Bulgarian case law regarding arbitration is extensive and comprehensive. The Bulgarian decisions contain detailed description of the reasons reflected by the court when rendering a particular judgment and the reasonings are drafted in outstanding manner. The Bulgarian courts have taken a number of decisions regarding issues, which are often controversial in the international practise and which many of courts in another countries are trying to keep away from. The paper reflecting the most interesting case law since the past half a decade