COMMERCIAL COMPANIES AND COMMERCIAL COURTS

The company law rules governing commercial companies, being a special sphere of substantive law, are not and cannot by themselves constitute a closed regulatory system. Practical legal life of numerous substantive institutes of company law is possible only within the complete legal surrounding and in delicate cooperation between substantive and procedural regulation. At this moment, the Serbian legal scene is characterized by an evident gap between legislative aspiration which covers the sphere of substantive provisions governing commercial companies (Law on commercial companies) aimed at following the trends of the company law regulation in the leading European countries and harmonised regulation within this sphere on the level of EU and regulation which covers the procedure of enforcement of those institutes in practice, both contentious and extra contentious, both judicial and arbitration. Of course, this does not mean that regulation of substantive law institutes, especially the institutes which have their procedural side, is always fully acceptable and exemplary in all their aspects.

In this article the author critically discusses, before all, shortcomings of Serbian companies’ regulation which governs substantive law institutes having corresponding procedural aspects: arbitrability of internal company disputes (companies’ members – members, members – board of directors, companies’ members – company) and special companies’ actions that are recognized and regulated by law (arbitrability of derivative action, arbitrability of individual action, arbitrability of class action); shortcomings of existing substantive legal regime of derivative action, which are the main reason of the scarce presence of this type of action in judicial practice; shortcomings of existing legal regime of individual action (especially on the level of covering the zone of reflective losses), as well as the shortcomings of legal regime of the class action as a kind of collective action (especially of its legal effect on non-participants in the procedure before courts or arbitration) and, finally, representative actions. The author draws the conclusion that it is necessary to review the substantive regulation in order to remove any possible ground for interpretation that internal companies’ disputes are not arbitrable (capable of being resolved by arbitration under the arbitration agreement). In the same vein, the author submits that it is necessary to thoroughly modify the existing procedural regulation, in order to make procedural aspects of company lawsuits more straightforward and indisputable (litispendancy objection and res iudicata objection – the need to establish only the objective identity of the subject-matter of the disputes, procedural costs related to derivative actions, legal effect of class action on non-participants in litigation or arbitration procedure, practical aspects of representative legal actions and so on). Finally, the author proposes the introduction of the possibility for alternative competence of public notaries for numerous extra-contentious procedures which can now be brought only before commercial courts. As an argument in favour of this proposal, the author puts forward that, at present, public notaries are competent to perform various non-contentions procedures (this could partly compensate for their almost complete non-justifiable exclusion from the sphere of company law, which is the current approach taken by the Serbian public notary law).