The current structure of the Kosovo court system is largely unchanged from former Yugoslav times. The legal framework under which it functions, of course, is different – the framework now consists of a complex combination of UNMIK Regulations and former Yugoslav laws which have been preserved in force under the UNMIK administration.
There is wide consensus that the court system badly needs reorganization. To that end the SRSG in 2002 initiated a major study which resulted in a comprehensive analysis and set of recommendations for restructuring that was published in 2004. The 2004 Report was sponsored by the Council of Europe and the U.S. Department of Justice and is based on extensive interviews with Kosovo judges and court personnel by European and U.S. judges and court administration officials.
Because of its comprehensiveness and detail, the 2004 Report may be considered the basic resource and a necessary starting point for further analysis of the Kosovo court system.
The 2004 report does not concentrate on commercial law issues; rather, it focuses on the general structure of the current justice system, key issues affecting management of the courts including analysis of and the need for reducing delays and case backlogs, various criminal procedure issues, and proposed staffing levels for all of the courts. From the commercial law standpoint, however, there are important issues concerning Kosovo’s only functioning Commercial Court that require more detailed consideration. These issues include the following:
- Whether the Commercial Court should be maintained as a separate court or folded into the general court system (the 2004 Report recommends the latter);
- Whether the Commercial Court’s jurisdiction should be expanded to include a broader range of commercial cases than at present;
- Whether some or all of the Commercial Court’s former authority relating to deregistration of insolvent companies should be restored; and
- Whether, if the Commercial Court’s jurisdiction is indeed expanded, there should be only one such court (as now) or more than one established on a regional basis (as in former Yugoslav times).
There is a great need to resolve those issues promptly so that an agreed Commercial Court structure will be in place when final status is determined. It is argued below that the separate Commercial Court should be retained and expanded, notwithstanding the contrary recommendation of the 2004 Report.
