Naslov
Who Bears the Costs of Partial Victory in Civil Litigation and Arbitration

Autori
Bratković, Marko

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, pp prezentacija, znanstveni

Skup
PPJ 2016: Arbitration and Civil Litigation - Cross- Fertilisation and Complementarity

Mjesto i datum
Dubrovnik, Hrvatska, 23.05.2016. - 27.05.2016

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
civil litigation, arbitration, costs

Sažetak
If a party succeeds in the proceedings in part, the court may, having regard to the success achieved, order that each party must bear their respective costs, or that one party must reimburse to the other party and the intervener the corresponding part of the costs. (Article 154(2) of the Croatian Civil Procedure Act) According to the cited paragraph of the Croatian Civil Procedure Act, when a party partly succeeds in the proceedings, the court may order that party to reimburse the corresponding part of the other party’s costs. It means that where the plaintiff succeeds in a civil action only in part, he may have to pay the defendant’s costs (including lawyers’ fees) in proportion to the percentage of his claim that was disallowed. The purpose of such a rule is to protect defendants from frivolous lawsuits which unreasonably increase the costs professional legal representation for the defendant. However, application of this rule seems to be problematic. In recent decades inconsistent case law has developed resulting in tremendous differences in awarded costs of partial victory in similar cases. Even the Supreme Court has issued different legal interpretations in that regard. The European Court of Human Rights warned in one of its decisions (Klauz v. Croatia) that courts should not apply the cited provision mechanically without having sufficient regard to the specific circumstances of each case. What are the specific circumstances of the case that a court has to take into account in awarding costs? And to which extent should these be considered? Obviously, strict mathematical considerations on the proportionality between the level of success in the proceeding and the costs incurred do not suffice. The question arises how to properly balance the mathematical efficiency and fairness of the result in awarding costs of partial victory. What are the comparative experiences in that regard? Who bears the costs of partial victory in comparative litigation proceedings? Experiences from international arbitration in which participants come from different legal backgrounds and traditions should be even more beneficial in finding the ideal model approach to the allocation of costs in case of partial win/loss in civil litigation (and arbitration) proceedings

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA