The flat tax: the holy grail for the future of European’s taxation systems?

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Varazdin Development and Entrepreneurship Agency

in cooperation with

Faculty of Law University of Split University of Split

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University North

Faculty of Management University of Warsaw

Faculty of Law, Economics and Social Sciences Sale - Mohammed V University in Rabat

Economic and Social Development

31st_{International Scientific Conference on Economic and Social Development -}

“Legal Challenges of Modern World”

Editors:

Marijan Cingula, Douglas Rhein, Mustapha Machrafi

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in cooperation with

Faculty of Law University of Split University of Split

University Department for Forensic Sciences Faculty of Law University of Mostar

University North

Faculty of Management University of Warsaw

Faculty of Law, Economics and Social Sciences Sale - Mohammed V University in Rabat

Editors:

Marijan Cingula, Douglas Rhein, Mustapha Machrafi

Economic and Social Development

31st_{International Scientific Conference on Economic and Social Development -}

“Legal Challenges of Modern World”

Book of Proceedings

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Development - “Legal Challenges of Modern World”

Editors ◼ Marijan Cingula, Douglas Rhein, Mustapha Machrafi

Scientific Committee ◼ Marijan Cingula, University of Zagreb, Croatia (President); Ayuba A. Aminu, University of Maiduguri, Maiduguri, Nigeria; Anona Armstrong, Victoria University, Australia; Gouri Sankar Bandyopadhyay, The University of Burdwan, Rajbati Bardhaman, India; Haimanti Banerji, Indian Institute of Technology, Kharagpur, India; Alla Bobyleva, The Lomonosov Moscow State University, Russia; Leonid K. Bobrov, State University of Economics and Management, Novosibirsk, Russia; Rado Bohinc, University of Ljubljana, Slovenia; Elisabeth de Jesus Oliveira Brito - University of Aveiro, Portugal; Zeki Atil Bulut, Dokuz Eylul University, Turkey; Adnan Celik, Selcuk University - Konya, Turkey; Angelo Maia Cister, Federal University of Rio de Janeiro, Brasil; Mirela Cristea, University of Craiova, Romania; Sreten Cuzovic, University of Nis, Serbia; Oguz Demir, Istanbul Commerce University, Turkey; T.S. Devaraja, University of Mysore, India; Onur Dogan, Dokuz Eylul University, Turkey; Darko Dukic, University of Osijek, Croatia; Gordana Dukic, University of Osijek, Croatia; Alba Dumi, Vlora University, Vlore, Albania; Ksenija Dumicic, University of Zagreb, Croatia; Galina Pavlovna Gagarinskaya, Samara State University, Russia; Fran Galetic, Zagreb University, Croatia; Mirjana Gligoric, Faculty of Economics, Belgrade University, Serbia; Mehmet Emre Gorgulu, Afyon Kocatepe University, Turkey; Aleksandra Grobelna, Gdynia Maritime University, Poland; Liudmila Guzikova, Peter the Great Saint-Petersburg Polytechnic University, Russia; Anica Hunjet, University North, Koprivnica, Croatia; Oxana Ivanova, Ulyanovsk State University, Ulyanovsk, Russia; Irena Jankovic, Faculty of Economics, Belgrade University, Serbia; Lara Jelenc, University of Rijeka, Croatia; Myrl Jones, Radford University, USA; Gorazd Justinek, Graduate School of Government and European Studies, Slovenia; Hacer Simay Karaalp, Pamukkale University,Turkey; Grzegorz Karasiewicz, University of Warsaw, Poland; Dafna Kariv, The College of Management Academic Studies, Rishon Le Zion, Israel; Salih Katircioglu, Eastern Mediterranean University, Northern Cyprus, Turkey; Hilal Yildirir Keser, Uludag University, Bursa, Turkey; Martina Dragija Kostic; Sophia Khalimova, Institute of Economics and Industrial Engineering of Siberian Branch of Russian Academy of Science, Novosibirsk, Russia; Marina Klacmer Calopa, University of Zagreb, Croatia; Vladimir Kovsca, University of Zagreb, Croatia; Goran Kozina, University North, Koprivnica, Croatia; Dzenan Kulovic, Univeristy of Zenica, Bosnia and Herzegovina; Robert Lewis, Les Roches Gruyère University of Applied Sciences, Bulle, Switzerland; Ladislav Lukas, Univ. of West Bohemia, Faculty of Economics, Czech Republic; Pascal Marty, University of La Rochelle, France; Vaidotas Matutis, Vilnius University, Lithuania; Marjana Merkac Skok, GEA College of Entrepreneurship, Ljubljana, Slovenija; Daniel Francois Meyer, North West University, South Africa; Marin Milkovic, Rector, University North, Koprivnica, Croatia; Gratiela Georgiana Noja, West University of Timisoara, Romania; Zsuzsanna Novak, Corvinus University of Budapest, Hungary; Alojzy Z. Nowak, University of Warsaw, Poland; Mislav Ante Omazic, University of Zagreb, Croatia; Vera Palea, Universita degli Studi di Torino, Italy; Dusko Pavlovic, Libertas International University, Zagreb, Croatia; Igor Pihir, University of Zagreb, Croatia; Dinko Primorac, University North, Koprivnica, Croatia; Zeljka Primorac, University of Split, Croatia; Miroslaw Przygoda, University of Warsaw, Poland; Nicholas Recker, Metropolitan State University of Denver, USA; Kerry Redican, Virginia Tech, Blacksburg, USA; Humberto Ribeiro, University of Aveiro, Portugal; Robert Rybnicek, University of Graz, Austria; Elzbieta Szymanska, Bialystok University of Technology, Poland; Katarzyna Szymanska, The State Higher School of Vocational Education in Ciechanow, Poland; Jan Turyna, University of Warsaw, Poland; Ilaria Tutore, University of Naples Parthenope, Italy; Claudia Miranda Veloso - University of Aveiro, Portugal; Rebeka Danijela Vlahov, University of Zagreb; Ilko Vrankic, University of Zagreb, Croatia; Thomas Will, Agnes Scott College, USA; Li Yongqiang, Victoria University, Australia; Peter Zabielskis, University of Macau, China; Tao Zeng, Wilfrid Laurier University, Waterloo, Canada; Snezana Zivkovic, University of Nis, Serbia.

Review Committee ◼ Marina Klacmer Calopa (President); Ana Aleksic; Sandra Raquel Alves; Ayuba Aminu; Mihovil Andjelinovic; Josip Arneric; Lidija Bagaric; Tomislav Bakovic; Sanja Blazevic; Leonid Bobrov; Ruzica Brecic; Anita Ceh Casni; Mirela Cristea; Oguz Demir; Jasmina Dvorski; Stjepan Dvorski; Robert Fabac; Ivica Filipovic; Fran Galetic; Mirjana Gligoric; Tomislav Globan; Anita Goltnik Urnaut; Tomislav Herceg; Irena Jankovic; Emina Jerkovic; Dafna Kariv; Oliver Kesar; Hilal Yildirir Keser; Tatjana Kovac; Vladimir Kovsca; Angelo Maia Cister; Katarina Marosevic; Vaidotas Matutis; Marjana Merkac Skok; Josip Mikulic; Ljubica Milanovic Glavan; Daniel Francois Meyer; Natanya Meyer; Guenter Mueller; Ivana Nacinovic Braje; Zlatko Nedelko; Gratiela Georgiana Noja; Zsuzsanna Novak; Alka Obadic; Claudia Ogrean; Igor Pihir; Najla Podrug; Vojko Potocan; Dinko Primorac; Zeljka Primorac; Sanda Renko; Humberto Ribeiro; Vlasta Roska; Souhaila Said; Armando Javier Sanchez Diaz; Tomislav Sekur; Lorena Skuflic; Mirko Smoljic; Petar Soric; Mario Spremic; Matjaz Stor; Tomasz Studzieniecki; Lejla Tijanic; Daniel Tomic; Boris Tusek; Rebeka Daniela Vlahov; Ilko Vrankic; Thomas Will; Zoran Wittine; Tao Zeng; Snezana Zivkovic; Berislav Zmuk.

Organizing Committee ◼ Zeljka Primorac (President); Simun Andjelinovic; Marina Klacmer Calopa; Domagoj Cingula; Marijan Cingula; Ivica Filipovic; Sabrina Horovic; Miroslaw Przygoda; Zeljko Radic.

Publishing Editor ◼ Domagoj Cingula

Publisher ◼ Design ◼ Print ◼ Varazdin Development and Entrepreneurship Agency, Varazdin, Croatia / Faculty of Law University of Split, Croatia / University of Split, Croatia / University Department for Forensic Sciences, Croatia / Faculty of Law University of Mostar, Bosnia and Herzegovina / Faculty of Management University of Warsaw, Poland / University North, Croatia / Faculty of Law, Economics and Social Sciences Sale - Mohammed V University in Rabat, Morocco

Printing ◼ Online Edition ISSN 1849-7535

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© 2018 Varazdin Development and Entrepreneurship Agency, Varazdin, Croatia / Faculty of Law University of Split, Croatia / University of Split, Croatia / University Department for Forensic Sciences, Croatia / Faculty of Law University of Mostar, Bosnia and Herzegovina / Faculty of Management University of Warsaw, Poland / University North, Croatia / Faculty of Law, Economics and Social Sciences Sale - Mohammed V University in Rabat, Morocco.

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CURT RESOLVE OF THE COMMERCIAL DISPUTES IN THE

REPUBLIC OF KOSOVO IN THE PERIOD 2013-2015

Adnan Jashari

Faculty of Law, South East European University, Republic of Macedonia a.jashari@seeu.edu.mk

Egzone Osmanaj

PhD candidate, South-East European University, Republic of Macedonia egzona.osmanaj@evun.eu

ABSTRACT

The aim of this paper is to analyze the legal provisions which adjust the procedure for resolving commercial disputes in the court, the paper, particularly aims to identify the problems that are encountered in practice. The paper is divided into two parts. The first part of the paper deals with the jurisdiction of the court on commercial disputes and the rules that apply to the conduct of commercial contest proceedings whereas, the second part of the paper analyzes the empirical data extracted from the research conducted at the Basic Court in Pristina regarding the trade disputes resolved during 2013-2015.The questions raised in this paper are:- the Rules defining the jurisdiction of the court on economic issues are found within a law or in different laws; -If the rules defining the jurisdiction of the court are found in different laws, is the court competence consistently determined by such rules?; How often business subjects address to the court to resolve their disputes and how effective the courts are in resolving these disputes, and from which relationships the most commonly the trade disputes arise. At the conclusion of the paper, it results that the commercial disputes mostly arise from the violation of the contractual obligations.

Keywords: business organization, commercial dispute, court, competence 1. THE NOTION OF THE TRADE DISPUTE

The notion of a trade dispute is not defined by the law1, in the law, it is only mentioned from which relationships the economic disputes arise. The notion of commercial disputes is provided from the legal theory. In the legal theory, trade disputes are called disputes between business entities related to contracts and other legal transactions that serve the performance of a business activity.2 Different disputes may arise in the commercial companies, not only between different business entities but also among the founders of the society, among the founders and bodies of the society as well as among the members of society itself.3 In practice, the most frequent disputes are the consortia of the commercial companies with the third persons regarding the accomplishment or fulfillment of the contracts which the commercial companies bind in order to exercise their business activity.

1.1. The competence of the court in commercial disputes

For the resolution of commercial disputes at the first instance competent is considered the Basic Court4, respectively the Department for Economic Affairs, which acts only in the Basic Court

1_{Law No.02/L-123 on business organizations (Official Gazete of the Republic of Kosovo No.39/2008).} 2_{F. Brestovci (2004) E Drejta Procedurale Civile II. Prishtinë. Fq.137}

3_{A.Jashari (2009) Subjektët e së Drejtës Afariste.Tetovë. Fq.142.}

4_{In Kosovo operate 7 Basic Courts: Basic Court of Pristina in Prishtina, which operates on the territory of Municipality of Prishtina,}

Kosovo Polje, Obilic, Lipljan, Podujevo, Glogovac and Gracanica; Basic Court of Gjilan with headquarter in Gjilan, which operates on the territory municipality of Gjilan, Kamenica, Novo Brdo, Ranilug. Partes, Viti, Kllokot and Vërboc; Basic Court of Prizren, located in Prizren which operates on the territory of Municipality of Prizren, Dragash, Suhareka and Mamusha; Basic Court in Gjakova, located in Gjakova, which operates on the territory of Gjakova, Malisheva, and Orahovac; Basic Court in Peja Peja, operates on the territory of municipality of Peja, Decan, Junik, Istok and Kline; Basic Court in Ferizaj, which operates for the territory of municipality of Ferizaj, Kaçanik, Shtime, Strpce

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in Prishtina for the entire territory of the Republic of Kosovo. Thus, the adjudication of economic matters is the sole competence of the Basic Court in Prishtina. According to the previous legislation, namely the Law on Regular Courts of 1978, which was applicable in Kosovo until 2013 until the entry into force of the present Law, the Economic Court was responsible for adjudicating the economic matters. With the new organization of the courts made under the Law on Courts of 2013, the Commercial Court has ceased to exist and the economic issues have been transferred to the jurisdiction of the Basic Court, respectively the economic affair. According to the Law on Courts, the economic disputes that are judged by the deportation on economic matters are considered:

a) “Disputes between domestic and foreign economic persons in their commercial affairs. b) Reorganization, Bankruptcy and liquidation of economic persons, unless otherwise

provided by Law.

c) Disputes regarding obstruction of possession, with the exception of immovable property, between domestic and foreign economic persons in their commercial affairs.

d) Disputes regarding impingement of competition, misuse of monopoly and dominant market position, and monopolistic agreements.

e) Protection of property rights and intellectual property.

f) Disputes involving aviation companies for which the Law on aviation companies applies, excluding traveler disputes”5_.

Even the special laws regulating bankruptcy, competition, intellectual property, contain provisions which adjust the court jurisdiction over the contested cases, in some cases these provisions differ from the provisions of the Law on Courts by appointing other Courts instead of the Department of Matters Economic Chamber of the Basic Court in Pristina that deal with contested cases in the economic-trade field. For example, the Law on the Court gives the Basic Court in Pristina, respectively the Economic Affairs Department the jurisdiction over the competition law disputes. The competition protection law, however, completely removes the contested disputed cases from the disputes over the Economic Matters. This results from the provision of article 62 paragraph 1 of the Law on Protection of Competition, which states: “Appealing is not permitted against the decision of the Authority, which ascertains violation of this law and pronounces punitive measures as well as the decision which terminates the procedure due to previous issues, however, the party, within a period of thirty (30) days, may initiate an administrative conflict by filing a lawsuit at the Competent Court of Kosovo” and from paragraph.2 of article 62 where it is stated: “Appealing against the conclusion of the Authority ruled out during the procedure is not allowed, however, an administrative conflict may be initiated by filing a lawsuit at the Competent Court of Kosovo.” The Law on Copyright and Related Rights does not expressly define the jurisdiction of the court: “For the proceedings on the infringement of Copyrights and Related Rights decides the competent Court”. No other details are provided in this law that which of the court instances or which of the foundations of the Basic Court has exclusive jurisdiction over copyright disputes. The Law on Trademarks stipulates that the competent court is "a competent court in Prishtina"6; this can be understood as the competence of the Basic Court in Prishtina, respectively the competence of the Department of Economic Affairs. Unlike the above-mentioned laws, the Law on Bankruptcy (just like the Law on Courts) expressly states that competent for bankruptcy cases is the Basic Court in Pristina or the Department of Economic Affairs7. The Law on Contested Procedure also contains special provisions on territorial competence.

and Elez Han; Mitrovica Basic Court in Mitrovica, which operates on the territory of Municipality of Mitrovica South and North Mitrovica, Leposavic, Zubin Potok, Zvecan, Skenderaj and Vushtrri. See Article 7 al. 2 of the Law on Courts of Kosovo, No. 03 / L-199.

5 _{Law No.03/L-199 on Courts. (Official Gazete of the Republic of Kosovo. No.79/2010). See article 13 par.1.1, 1.2, 1.3 ,1.4 ,1.5 and 1.6.} 6 _{Law No.04/L-026 on Trademarks. (Official Gazete of the Republic of Kosovo. No.10/2011). See article 2.}

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Provisions contained in the LCP for territorial jurisdiction in some cases omit the jurisdiction (foreseen by the Law on Courts) of the Basic Court in Prishtina, respectively, for the Economic Affairs Department. For example, for the adjudication of disputes against a legal person of a general territorial jurisdiction under the LCP, the court in whose territory the registered office of the registered legal person is located is considered8. While for disputes related to immovable property under LCP, there is a court of jurisdiction in the territory in which the immovable property is located, as per the case in Article 41 par. 1 LCP states: “The court within whose territory is located the immovable property is exclusively competent to adjudicate the disputes that are related to the property and other property rights, disputes over the obstruction to possession of the immovable item, disputes over the lease of the immovable property or contracts for use of residence and working premises”.

1.2. Procedural rules for the conduct of commercial disputes procedures

The procedure in commercial disputes is a special contested procedure regulated by the Law on the Contested Procedure, which applies to resolve the costs arising from the relationships between business entities, respectively commercial companies. Resolving of the commercial disputes requires specialized knowledge on the part of those who resolve them, whereas on the other hand, because of the speed and security of the development of legal turnover in the economy should be resolved as soon as possible.9 For the resolution of trade disputes, special rules are stipulated other than those applicable to the general litigation procedure. Characteristic of the special contested procedure is the idea for the quickest resolving of the contest between the parties, respectively for the quickest possible grant of the legal protection. Therefore, when it comes to the development of a special contested procedure, including the procedure for resolving commercial disputes, the law provides for shorter deadlines for the full development of the contentious process starting from the response to the lawsuit, the scheduling of the preparatory session, main review, complaint filing, etc. As it is already known, the contested process starts, the court forwards the lawsuit to the respondent who has is entitled to answer the lawsuit after the preliminary examination of the lawsuit. The deadline for filing a lawsuit in trade disputes is 7 days10. For urgent cases, it is allowed to the court with a decision to schedule a preparatory hearing or a hearing for the main trial, without forwarding the lawsuit to the respondent for a response, a complaint against this ruling is not allowed. According to the LCP, the preparatory hearing is mandatory with the exception of these two cases a) when the court after reaching the response to the lawsuit finds that there is no controversial evidence between the parties; and b) in the case where the court, due to the incompatibility of the contest, concludes that there is no need to hold a preparatory hearing.11 Special rules for the preparation of the main review are applicable in the trade contested procedure. For the purpose of accomplishing the idea for faster resolution of commercial disputes by law, the judge is allowed to schedule hearings by phone or telegram for urgent cases.12 In the commercial contested procedure, the special rules apply for deadlines that are half shorter term compared to the deadlines in the general contested procedure, thus:

• The deadline for responding to the lawsuit is seven (7) days (in the general contested procedure the deadline for response to the lawsuit is 15 days);

• The deadline for submitting the proposal for a return to the previous state is 15 days (in the general contested procedure this deadline is 30 days).

• The deadline for the appeal against the verdict or the decision is 7 days (this deadline in the general contested procedure is 15 days);

8_{Law No.03/L-006 on Contested Procedure (Official Gazete of the Republic of Kosovo. No.38/2008). See article 39.2.} 9_{A.Janevski (2009). E Drejta Procedurale Civile, Libri i Parë, E Drejta Kontestimore. Shkup. Fq.442.}

10_{Law No.03/L-006 on Contested Procedure (Official Gazete of the Republic of Kosovo. No.38/2008). See article 509.a.} 11_{Ibid, see article 401.}

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• The deadline for filing a response to the appeal is 3 days (in the general contested procedure this deadline is 7 days);

• The deadline for meeting the obligation of money is 7 days, while for the meeting of the non-cash promise the court may set a longer term.13

The LPK also contains special rules for trade disputes with little value. According to LCP, commercial disputes of small value are considered:

a) Disputes in which the claim relates to a claim in cash which does not exceed the amount of 3.000Euros.

b) Disputes in which the claim does not relate to a claim on money, but the plaintiff in his claim declares that he accepts that, instead of the promise not in the money, of money that does not exceed the amount of 3.000 Euros.

c) The dispute in which the object of the dispute is not the amount of money but the delivery of movable property whose value, mentioned by the plaintiff in the claim, does not exceed the amount of 3.000 Euros.14

Another feature in the commercial dispute procedure is that revision in trade disputes is not allowed if the value of the contested object in the affected part of the final judgment does not exceed € 10, 00015.15

2. EMPIRICAL DATA

In an attempt to provide the most accurate information regarding the issues raised in this paper, a research was conducted in the Basic Court in Prishtina, respectively in the Economic Department. The purpose of this research was to find how often business subjects are addressed to the court for resolving their disputes, respectively how much the court is used as a mechanism for resolving commercial disputes and how effective is the court in resolving disputes and what Legal- Business lawsuits are the most frequent disputes. For the purposes of extracting this data, we have been allowed by the court to have direct access to the registers where the cases are registered, and we have been monitoring the records of the last five years, respectively 2010-2015. It should be noted that the register contains data on: received cases; resolved and unresolved cases; For the object of dispute; the way of settlement; for the use of regular and extraordinary legal remedies and the manner of placement related to them. In addition, we have also conducted interviews with some of the judges of the Department of Economic Affairs.

Table 1: Percentage of resolved disputes and % of complaints filed against decisions given in trade disputes during the period 2010-2015

Year No. of received disputes No. of resolved disputes within a year

No. of total resolved disputes until October 2016 No. of filed complaints 2010 513 326 (63.5%) 501 (97.6%) 206 (41.1%) 2011 382 243 (63.6%) 379 (99.2%) 171 (45.1%) 2012 622 289 (46.4%) 608 (97.7%) 275 (45.2%) 2013 764 213 (27.8%) 702 (91.8%) 305 (43.4%) 2014 664 173 (26%) 516 (77.7%) 139 (26.9%) 2015 630 66 (10.4%) 227 (36%) 53 (23.3%)

13_{Law No.03/L-006 on Contested Procedure (Official Gazete of the Republic of Kosovo.No.38/2008).See article 509.} 14_{Ibid, see article 510.}

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In the chart above are presented the data related to the number of commercial disputes initiated and solved for each year separately as well as the data related to the number of complaints filed against the decisions given in commercial disputes during the period 2010-2015. If we compare the data of 2010, 2011 and 2012 when commercial disputes were adjudicated by the Commercial Court with the data of 2013, 2014 and 2015 when the commercial disputes were adjudicated by the Basic Court in Prishtina, it is noted that the number of disputes has increased since 2013 During the period 2010-2012, 1,517 the disputes were initiated at the Commercial Court, whereas 2,058 the disputes were initiated at the Basic Court in Pristina, respectively in the Department on Economic Affairs during 2013-2015, thus increasing the number of the disputes for 541 (15%). Another significant difference is observed in the percentage of litigation resolved within the year in which they were initiated. The average percentage of the disputes resolved within the year that was initiated at the Commercial Court for the 2010-2012 period is 56.5% and 1.517 initiated disputes are resolved within 858. While in the Department for Economic Affairs the average resolved disputes n within the year of which were initiated for the period 2013-2015 is 21.9%, respectively 2,058 initiated disputes have been resolved within 452. Thus, for the same period in the Commercial Court, 406 the disputes were resolved more than in the Economic Department. It should be noted that two judges have acted in the Commercial Court, while 4 Judges operate in the Economic Affairs Department. The small number of disputes resolved within the year, which was initiated by the judge of Economic Affairs, Mr. Bajram Miftari, says no longer relates to the ineffectiveness of their work, but this is due to the large volume of work in their Department. He says that within a year in the Economic Affairs Department there are nearly 900 cases and the largest number of completed cases occupy the cases of previous years inherited from the Commercial Court which should be given priority in relation to the new cases initiated. For example, he points out that he is currently working on cases from 2007 to 2008 and that therefore the duration of reviewing of the trade dispute can take up to a period of 2 years. In addition to the Commercial Disputes in the Economic Department until 2016, the requests for executions or execution of court decisions in commercial disputes have been reviewed, in fact, the largest number of economic cases completed within the year until 2016, execution requirements. For example, in 2015, 630 disputes were initiated within the year, only 66 (10.4%) were resolved within the year, but 290 disputes were initiated several years ago in 2015, but during this year 486 requests for execution of economic disputes.16 From this it results that during the year 2015 in the Settlement for Economic Affairs 842 cases were conducted; 7.8% of the cases were incurred in disputes initiated by 2015; 30.8% of the cases committed were the disputes initiated prior to 2015; As well as 57.7% of the other cases committed were the requirements for executions. So, the number of cases resolved during 2015 turns out to be roughly a fixed rate of 17-18 cases per judge per month, meaning within a month the proceeding of 68-70 cases on average was completed. From monitoring the public records and analyzing the annual work reports of the court, we have noticed that in general, the Department of Economic Affairs has performed well in terms of reaching the rate of completion of the cases, but due to the high number of cases accumulated from the years previous, the number of outstanding cases remains very high. For example, in 2015 the number of unsolved cases was 4,690 out of them 1,159 were disputes and 3,531 executions (executions). It is worth noting that in 2016 the practice of executing court decisions in commercial disputes changed, i.e. the execution of economic cases has been transferred to the competence of private bailiffs. For this reason, the Basic Court in Pristina and the Economic Affairs Department during 2016 did not receive any request for execution of economic cases, and for a high number of executions (executions) left over from the previous year, a decision which was declared incompetent for their review. Namely, during the first six months of 2016, the court was declared incompetent to review the 1100 requests for execution

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or execution of economic cases. This has reduced the number of unsolved cases compared to 2015, respectively during the first six months of 2016, the number of unsolved cases was 3,583 of them 1,152 disputes and 2,431 executions. It should be noted that during the first six months of 2016, 352 commercial disputes were initiated. The total number of cases completed during the first six months of 2016 has been 1,459, respectively, 359 disputes were solved, while for the other 1,100 cases that made up the requests for executions, the court completed the procedure by declaring it incompetent for their review.17 By comparing this data with the year 2015 where 842 cases were solved (of which 356 disputes and 486 requests for executions), it results that only 617 cases were solved for the first 6 months of 2016 in 2015. If the court performance continues to be the same for the next 6 months of the year, the number of 1,459 solved cases, may be added round 1,400 cases. Thus, the number of cases solved for 2016 is expected to reach about 3,000. Thus, the transfer of the power to review the execution of economic cases to private bailiffs has greatly facilitated the work of the court. It should be argued that in increasing the efficiency of court work during the first six months of 2016, it has also affected that during this period in the Economic Department are engaged (by USAID) three legal officers to assist judges in dealing with economic issues. The judges themselves also emphasized that the engagement of USAID staff has greatly facilitated their work. From this, it turns out that to increase the efficiency of the court it is necessary to engage permanent staff for judges. It is important to note that in the public opinion the question of the quality of court decisions given in commercial disputes is questionable. Even according to various studies carried out in the country, it results that court decisions on trade disputes are generally of poor quality. Thus, in a study conducted by the USAID in 2015, it is stated that "2012 evaluation of judicial decisions by the European Bank for Reconstruction and Development found that the quality and predictability of court judgments in commercial matters in Kosovo are weak." According to the USAID, this is related to the lack of knowledge and experience of judges in specialized areas of the law.18 _{Even business community representatives and economic affairs}

experts in the country say that judges need professional advancement. Kosovo Chamber of Commerce Chairman Safet Gërxhaliu says that judges lack a proper knowledge, particularly regarding terminology.19 Even according to a study published by the American Chamber of Commerce in Kosovo, respectively by the Arbitration Center in 2016, the lack of specialized knowledge of judges on trade issues turns out to be the main problem in the judicial system.20 In this study of ACHCK, are included 42 businesses. On the question of how satisfied they were with the functioning/work of the courts when referring to the dispute resolution court, 44% of the businesses (respondents) included in this study stated that they were dissatisfied, 56% stated moderately satisfied, whereas as satisfied enough no one was declared.21 Our opinion is that the work of the courts, respectively, the quality of court decisions is assessed by comparing the number of appeals filed by the parties to the proceedings against the number of complaints received by the second instance court. For example, during the 2015 dealing on economic issues 356 disputes have been resolved. Of the total of 356 decisions taken against 209 decisions, the parties to the proceedings filed a complaint. Thus, over 58% of the parties to the proceedings during the year have been dissatisfied with judicial decisions. The second instance court during the year 2015 had received more than 209 complaints received from 195 complaints received from previous years. So, during the year 2015, in the second instance court, there was a total of

17_{See Kosovo Judicial Council (2016) Statistical Report of six-month period 2016 on the work of the courts, Department of Statistics .Page}

9.

18_{http://zeri.info/ekonomia/38214/kontestet-gjyqesore-pengese-per-investitoret/ artikulli i publikuar më daten 22 qershor 2015| ora 09:01}

(visited whith the date.17.11.2016).

19_{http://gazetatribuna.com/lajme/ceshtjet-ekonomike-sfide-per-gjyqtare-dhe-prokurore/ artikulli i publikuar më 28 Shkurt 2016| 15:38}

(visited whith the date 17.11.2016).

20_{Studim Vjetor i Qendrës së Arbitrazhit (2016) Qendra e Arbitrazhit në Oden Ekonomike Amerikane në Kosovë.Fq.14}

(Available at: http://www.adr-ks.org/site/shenimet/files/5964/studim_qendra_e_arbitrazhit_2016.pdf).

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404 cases at work. Of the 404 cases that were in operation by the end of the year the year 2015 were solved 298 cases (or 73.7%), thus: for 172 cases (or 57.7%), the first instance decision was verified; For 26 (or 8.7%) the complaint cases had been dismissed (as delayed, incomplete or inadmissible); whereas for the other 100 cases (or 33.5%) the complaint is accepted as grounded, whereas, during the first six months of 2016, the second instance court received 175 new cases at work and 106 cases remained in work from the previous year.22_{Thus, throughout}

the first six months of 2016, at the second instance court, 281 cases were in operation, of which 86 were solved (or 30.6%), thus: in 3 cases (or 3.4%) the complaint was dismissed; for 35 cases (or 40.6%), the first instance verdict was verified, whereas, for the other 48 cases (or 55.8%), the complaint was accepted as grounded.23 Thus, compared to 2015, during the first six months of 2016, it is noted that the percentage of complaints received as late for 22% has increased. It should be noted that as a second instance court there is an Appellate Court where 37 judges are employed, with only 2 judges being taken on economic matters. Although in most cases the parties are dissatisfied with the court decisions, as evidenced by the high number of complaints filed, businesses still resolve their disputes mostly by the court. All this results from the high number of disputes initiated within a year in court, for example, in 2015 the court addressed 630 businesses to resolve their disputes. In the study conducted by ACHCK in 2013 (referred to above) regarding the contest resolving, 61% of the businesses involved in the study stated that they resolved their disputes to the court, whereas only 19 % have expressed that they have resolved arbitration for resolving their disputes.24 Thus, the court remains the most used mechanism or method used by businesses to resolve their disputes. The main reason for the selection of the court besides the arbitration according to the study carried out by the ACHCK results to be the lack of the appeal procedure against the decision given in the arbitration proceedings, for which parties the court decision considers the most pompous in relation to the arbitral award. As other reasons mentioned the lack of proper information of businesses for the functioning of arbitration and the fact that arbitration is more expensive than court proceedings.25 We also consider that the main reason for choosing the court in addition to arbitration in our country is the higher cost of the arbitration procedure as well as the lack of awareness of the business on the functioning and importance of dispute resolution through arbitration. Also, the election of the court is also linked to the greater legal certainty the parties feel to the court in relation to arbitration, as traditionally the court is considered a safer system.

Table 2: Percentage of resolved disputes (lawsuits) for the period 2013-2015 in the Basic Court in Pristin Year Compensa tion of the Damage Return of the Debt Protectio n of the Trade Mark Protectio n of the Copyrigh t Protectio n of the License Ungrounde d Enrichment Property Obstructio n Verification of the Property Other s 2013 31.6% 49.4% 1.8% 0.02% 0 0.2% 0.7% 0.4% 10.3 % 2014 41.4% 36.4% 3.4% 0 0.38% 2.3% 0.58% 0 10.4 % 2015 44.9 29.5% 4.4% 1.3% 0 7.4% 0 0 6.6%

22_{See Kosovo Judicial Council (2015) Annual Report of Statistics the Courts, Department of Statistics.Page 8.}

23_{See Kosovo Judicial Council (2016) Statistical Report of six-month period 2016 on the work of the courts, Department of Statistics. Page 8.} 24_{Studim Vjetor i Qendrës së Arbitrazhit (2016) Qendra e Arbitrazhit në Oden Ekonomike Amerikane në Kosovë.Fq.7}

(Available at: http://www.adr-ks.org/site/shenimet/files/5964/studim_qendra_e_arbitrazhit_2016.pdf).

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The table above shows the data regarding the nature of lawsuits resolved for the period 2013-2015 in the Basic Court in Prishtina, respectively in the Economic Department. From the monitoring of the public registers of economic cases (disputes) of 2013-2015, we have noticed that the largest number of lawsuits comprises claims for compensation of damage and debt repayment due to non-fulfillment of different contractual obligations or irregular fulfillment of Contractual obligations. As can be seen from the data presented in the table above, claims for compensation and debt repayment in 2013 accounted for 80% of the lawsuits in 2014, over 77% and 73% in 2015. Therefore, the largest number of disputes arises from a breach of contractual obligations. The Judges of the Economic Department of the Basic Court in Pristina point out that one of the most common problems regarding claims for compensation due to non-compliance with the contractual obligations is that these requirements are quite often based on informal or oral contracts. This means that businesses do not pay attention to written agreements, which creates difficulties in establishing the existence of a contract or conditions under which contracts have been concluded in cases where between the parties various disputes arise regarding the performance of the contract. It is important to note that Kosovo and world rankings are ranked poorly as a result of non-execution of contracts. This is the result of World Bank reports called "Doing Business", according to which as a result of non-performance of contracts, Kosovo ranks weakest in all the countries of the region and weaker than all other EU countries with the exception of Italy. Accordingly, according to the World Bank's "Doing Business for 2010" report on non-execution of contracts, Kosovo is ranked 157th in the list of 183 countries in the world; For 2011 is ranked 155 in the list of 183 countries in the world; For the year 2012 is ranked 157th in the list of 183 countries in the world. While, for the year 2013, ranked 138 in the list of 185 countries in the world as well as for 2014 and for 2015 is also ranked 138 in the list of 189 countries in the world. (See Appendix no.1). Thus, according to the World Bank, during the period 2010-2015, Kosovo didn’t make any progress in improving ranking in terms of execution of contracts. We consider that the high number of business disputes resulting from the violation of contractual obligations and, on the other hand, the length of the court's review of these disputes negatively affect the attraction of foreign investment in the country.

3. CONCLUSION

The provisions of the Law on Courts is clearly defined that the competent court for adjudicating of economic affairs is the Basic Court in Pristina, respectively the Department of Economic Affairs and are clearly defined the relations from which the trade disputes arise. From what was considered in this paper it turns out that the main difficulties faced by the competent court for the adjudication of commercial disputes are the high number of pending cases due to the small number of judges and the lack of professional associates as well as lack of knowledge of Specialized judges for certain types of commercial disputes, for which parties in most cases are dissatisfied with the work of the court, namely from the data analyzed in this paper it was proved that:

• The number of commercial disputes initiated for the court settlement within one year is high, and the number of disputes resolved that are initiated within the year is very low. For example, for the period 2013-2015 in the Basic Court in Prishtina, 2,058 disputes were initiated within them, 452 or 21.9% were resolved within the year. The small number of disputes resolved within the year they have been initiated cannot be said to be the result of the poor performance and ineffectiveness of the court, as the court generally does well in terms of reaching the rate of completion of the cases. But it is a result of the high number of work-related cases from previous years which should ordinarily be given priority over new cases initiated.

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Apart from commercial disputes, the Basic Court in Pristina by the year 2016 has also been taken to execute or execute economic cases, which have been numerous in number.

• The number of unsolved cases at the end of 2015 in the Basic Court in Prishtina marked 4,690 of them 1,159 disputes and 3,531 executions.

• The number of complaints filed against the decisions given in commercial disputes is high. For example, in 2015 the Basic Court in Prishtina completed the procedure for the trial of 356 commercial disputes. Of the total of 356 decisions taken against 209 decisions, the parties to the proceedings filed a complaint. Thus, over 58% of the parties to the proceedings during the year had been dissatisfied with judicial decisions.

• The largest number of trade disputes arises from the breach of contractual obligations. For example, out of 1,445 disputes that were solved during the period 2013-2015 at the Basic Court in Pristina, claims for 1,140 disputes consisted of claims for compensation for damage and debt repayment due to non-fulfillment of various contractual obligations or improper performance of Contractual obligations. Thus, over the period 2013-2015 in the Basic Court in Prishtina over 78% of the lawsuits in commercial disputes included claims for compensation of damage and debt repayment.

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The flat tax: the holy grail for the future of European’s taxation systems?

Economic and Social Development

Economic and Social Development

Book of Proceedings

CONTENTS

CURT RESOLVE OF THE COMMERCIAL DISPUTES IN THE

REPUBLIC OF KOSOVO IN THE PERIOD 2013-2015