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Upravni ugovori u zakonima o opštem upravnom postuku zemalja zapadnog Balkana

Author(s): Dejan Lj. Milenković / Language(s): Serbian Issue: 3/2017

Administrative contract, as well as specific legal institut, draws the attention of theoreticians of administrative law for more than a century. For them, it is that they are “formally” recognized by the courts, or in special substantive laws or Generally Administrative procedural Act (GAPA), we can find in almost all Euro-continental legal systems. In the former Yugoslav theory, in conjunction with the institute of administrative contracts are continuously guided serious discussions since the sixties of the 20th century. However, at several last years, we can see the intention and tendecy that the administrative contracts have to be generally defined by GAPA. Today, all countries of the Western Balkans, except Bosnia and Herzegovina, have in new GAPA a special section that regulates this institute and its specific legal regime. However, the ways in which they are formulated and regulated depend on specifics of the legal system in each of these countries. In this paper, we gave the comparative archive and analyze legal norms relating to administrative contracts in new GAPA in Croatia, Montenegro, Macedonia, Albania and Serbia, with basic similarities and differences in thair existing legal regimes.

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THE RES JUDICATA RULE IN JURISDICTIONAL DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE

Author(s): Milenko Kreća / Language(s): English Issue: 3/2014

The author discusses the effects of the res judicata rule as regards jurisdictional decisions of the International Court of Justice. He finds that there exists a special position of a judgment on preliminary objection in respect to both aspects of the res judicata rule– its binding force and finality. A perception of distinct relativity of a jurisdictional decision of the Court, expressing its interlocatory character pervades, in his opinion, the body of law regulating the Court’s activity. Preliminary objections as such do not exhaust objections to the jurisdiction of the Court, as evidenced by non-preliminary objections to the jurisdiction of the Court giving rise to the application of the principle compétence de la compétence understood in the narrow sense. With regard to the binding force of a judgment on preliminary objections, it does not create legal obligations stricto sensu. The author finds that the relative character of jurisdictional decisions of the Court as compared with a judgment on the merits is justified on a number of grounds.

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IDENTIFICATION OF CUSTOM IN INTERNATIONAL LAW

Author(s): Bojan Milisavljević,Bojana Čučković / Language(s): English Issue: 3/2014

The paper analyzes an issue of fundamental significance for international law – the procedure for the identification of custom in public international law. Since customary law may be qualified as a sui generis source of international law, instruments and procedures for proving customs are of major importance. Particular attention is given to the role of custom in modern international law. The first part of the paper outlines the work of the International Law Commission relating to formation and evidence of customary law, including its identification. The second part of the article analyzes the jurisprudence of the International Court of Justice concerning the process of formation of customary law, instruments through which it is evidenced, as well as the procedures for evidencing it. Particularly noteworthy is the necessity to introduce objectified rules for detecting customs and to determine the scope of these rules, both internationally – for a number of actors, as well as internally – in the legal systems of States.

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ТРАНСПОЗИЦИЈА СТРАНИХ СТВАРНИХ ПРАВА НА ПОКРЕТНИМ СТВАРИМА ПРЕМА НАЦРТУ ЗАКОНА О МЕЂУНАРОДНОМ ПРИВАТНОМ ПРАВУ

Author(s): Slavko Đorđević / Language(s): Serbian Issue: 1/2013

Transposition in Private International Law enables transformation of unknown foreign right in rem over movables imported in Serbia into the closest domestic equivalent. Having in mind that the Serbian Code of Private International Law from 1982 contained no provisions dedicated to this issue, it comes as no surprise that the case law of domestic courts has also remained silent on this topic. However, following comparative doctrinal and practical tendencies, working group of the Serbian Ministry of Justice, entrusted with drafting of the new Code of Private International Law, decided to include transposition of unknown rights in rem within the Art. 118 of the Draft. The focus of the present paper is on careful analysis of these provisions and potential implications and benefits of the transposition of foreign rights within the scope of the Serbian legal system. At the outset, the paper focuses on the problem of changing of the situs of movable property and how this impacts on the actual need of a legal system for transposition of unknown rights in rem acquired abroad. Followed by a detailed discussion of Art. 118 of the Draft Code of Private International Law, the paper turns to inspection of all the legislative nuances of the rules on transposition (general rules on transposition of unknown rights in rem contained in the first two paragraphs of the draft article, as well as special rules on transposition of unknown non-possessory security rights into Serbian registered non-possessory pledge from the last two paragraphs of Art. 118). In the final part of the paper, particular emphasis is given to analysis of a so called theory of acceptance (Hinnahmetheorie), its view on tolerable adaptation of unknown rights in rem in the new situs and how all of this reflects the application of the rules on transposition of rights.

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ПРИПИСИВОСТ КАО УСЛОВ ОДГОВОРНОСТИ ДРЖАВЕ У МЕЂУНАРОДНОМ ПРАВУ

Author(s): Bojan Milisavljević / Language(s): Serbian Issue: 2/2012

There may not be state liability for wrongful act if the act concerned is not attributable to the State. The issue of attributability is quite complex, as the individuals may have gone beyond the limits of authority bestowed upon them by the State, or their connection to the State may be restricted. The author examines the concept of attributability in international law, focusing on the traditional grounds of attributability, and critically inspecting justification for its newer grounds. In that regard, the author analyzes a number of cases before the International Court of Justice, and the work of the International Law Commission.

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ИСЦРПЉЕЊЕ УНУТРАШЊИХ ПРАВНИХ СРЕДСТАВА КАО УСЛОВ ЗА ПРИМЕНУ ДИПЛОМАТСКЕ ЗАШТИТЕ У МЕЂУНАРОДНОМ ПРАВУ

Author(s): Bojan Milisavljević / Language(s): Serbian Issue: 1/2012

The author analyses the so-called ‘rule of exhaustion of local remedies’ as a necessary condition of diplomatic protection. State must be given the opportunity to redress the alleged wrongdoing within the framework of its own domestic legal system, before its international responsibility may be examined at the level of international community. The paper starts off with an overview of the historical development of diplomatic protection in international law, and then focuses on the question of legal development of the ‘rule of exhaustion of local remedies’, the existing practices before the arbitral courts and the International Court of Justice, and the issue of whether or not the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. The author offers different theoretical views of development of the rule on the universal level, and considers this rule as on of the necessary conditions of diplomatic protection in international law. The author emphasizes the work of International Law Commission of United Nations on Draft Article on Diplomatic Protection, and analyzes some of the exceptions from the rule of exhaustion of local remedies.

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COUNTERCLAIM AND SET-OFF IN INTERNATIONAL COMMERCIAL ARBITRATION

Author(s): Vladimir Pavićević / Language(s): English Issue: 3/2006

Until recently, admissibility of counterclaims before international commercial arbitrations has been treated in accordance with a relatively simple formula – one had to ascertain the objective scope of the arbitration agreement. With regard to set off defense, however, admissibility threshold was less clear and mostly dependent on the relation between the main claim and the claim used for purpose of set-off. The newly promulgated Swiss Arbitration Rules have, for the first time, enabled a potential broadening of arbitral jurisdiction over set-off claims, enabling Swiss tribunals to adjudicate even those set-offs already subject to another arbitration clause or forum selection clause. This might lead to a potentially dangerous situation, where such attraction of jurisdiction might lead to a conflict with another tribunal or court expressly designated as competent with regard to relations giving rise to a set-off. This triggers later dilemmas with regard to the reach of decisions on set-off and the possibility that the tribunal applies the lis pendens rules in order to avoid conflicting decisions.

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RECONCILING DUE PROCESS AND EFFICIENCY IN INTERNATIONAL ARBITRATION – THE ARBITRATOR’S TASK OF ACHIEVING THE ONE WITHOUT SACRIFICING THE OTHER

Author(s): Karl Pörnbacher,Alexander Dolgorukow / Language(s): English Issue: 3/2013

Reconciling efficiency and due process has never been an easy task for arbitrators. This task has in recent years even become more challenging as arbitration rules, arbitral institutions and practitioners in the field of international arbitration in general nowadays attach increased significance to conducting arbitrations in a time and cost efficient manner. The tool arbitrators are given to fulfil their task of balancing due process and efficiency is their wide discretion with regard to the conduct of the arbitral proceedings. Arbitrators should not give in to the temptation of granting each and every of the parties’ requests for additional submissions, additional production of evidence and extensive oral pleadings. Rather, due process should be understood in a more qualitative way. Proactive case management and an early involvement of the arbitral tribunal not only in the procedural but also in the substantive issues of a given case can enable the arbitral tribunal to give the parties the maximum opportunity to present their case without at the same time sacrificing efficiency.

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НАПОМЕНE О ЕСТОПЕЛУ У МЕЂУНАРОДНОМ ПРАВУ

Author(s): Sanja Đajić / Language(s): Serbian Issue: 1/2009

The article offers the analysis of the theory of estoppel in international law. Estoppel may create an international obligation for a state and as such can be a ground for its international responsibility. Estoppel by representation exists if there is a statement or representation made by one party to another and if the other party relied on this representation to his detriment or to the advantage of the party making it. Such a representation must be clear and unequivocal which can reasonably lead another party to change its position on its own detriment. The author points that estoppel has a dual function in international proceedings through the case law of international courts and arbitrations. To this end the author provides an overview of cases of the International Court of Justice (Serbian Loans, Diversion of Water from the Meuse Nicaruagua, El Salvador Honduras Frontier Dispute, Nuclear Tests) with special reference to and critical review of the recent preliminary objection judgment of the ICJ in the Genocide case between Croatia and Serbia, as well as the case law of the European Court for Human Rights and international arbitrations (ICSID arbitration). The author also refers to the work of the International Law Commission in the field of unilateral acts and state responsibility.

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TYPICALLY GERMAN? – TWO CONTENTIOUS GERMAN CONTRIBUTIONS TO THE CISG

Author(s): Peter Huber / Language(s): English Issue: 3/2011

The paper discusses two contentious German contributions to the CISG. The first issue is the so-called reasonable-use test which is applied as part of the fundamental breach doctrine. The second issue is an intricate doctrinal debate about the relationship between the right to avoid the contract and the right to claim damages for the performance interest.

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WAIVER IN ARBITRAL PROCEEDINGS AND LIMITATIONS ON WAIVER

Author(s): Tibor Várady / Language(s): English Issue: 3/2009

Focusing on waiver and on the limitations on waiver, the article starts with the principle itself, which has several articulations, including waiver. The question is raised whether it is necessary to give legislative expression to this principle, and it is noted that a growing number of legislative acts and arbitration rules devoted specific provisions to waiver (and these were typically guided by formulations adopted in UNCITRAL enactments). Attention has been devoted to the specific scope of legislative and institutional rules dealing with waiver. The main part of the article deals with limitations on waiver, and considers this question in juxtaposition with the impact of waiver on the existence and weight of the impairment which is at issue. The (un)fairness of a stipulation or (un)fairness of disregard of a proper stipulation is influenced by waiver. The impact of an unfair stipulation may change if it is followed by waiver. What needs to be assessed is the character of a situation ensuing after waiver (or after revocation of waiver).

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EXTENSION OF AN ARBITRATION AGREEMENT TO NON-SIGNATORIES: SOME REFLECTIONS ON SWISS JUDICIAL PRACTICE

Author(s): Michael Mráz / Language(s): English Issue: 3/2009

The Article deals with the question whether a party that has not signed an arbitral agreement may nevertheless be bound to arbitrate. The author analyzes Swiss legal doctrine and, in particular, the recent practice of the Swiss Federal Tribunal which has repeatedly dealt with this issue. According to the Swiss Federal Tribunal, an arbitral agreement may be extended to a non-signatory party where such party, through statements or behavior, has created a fair and reasonable expectation with another party that it considered itself bound by such arbitral agreement. The criteria to determine such ‘fair and reasonable expectations’ are identical to the ordinary criteria of (Swiss) contract law for the interpretation of statements or behavior of a party to a contract.

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MULTI-PARTY ARBITRATION: THE ORGANISATION OF MULTI-PARTY PROCEEDINGS – THE PROBLEMS FACED BY PARTIES AND ARBITRATORS

Author(s): Maria Theresa Trofaier / Language(s): English Issue: 3/2009

An inquiry into what problems are faced by parties and arbitrators in multiparty arbitrations must start with the question: When are there more parties involved in arbitration proceedings? Thus the circumstances that give rise to “multi-party arbitration” are identified, and the background to such issues as the perennial questions of “When may an arbitration clause be extended to non-signatories?” and “When may the proceedings be extended to others involved in the same economic transaction?” are covered with reference to some of the key cases that instigated a change of approach. The organization of the arbitral proceedings in such multi-party arbitral proceedings is then examined, first from the point of view of the parties and then from the point of view of the arbitral tribunal. From the point of view of the parties the issue of appointment of the arbitrators and the setting up of the arbitral tribunal is discussed, and reference is made to the specific provisions of various institutional rules regarding multi-party arbitral proceedings. The alternatives that are available and what is advisable are discussed. The possibilities of consolidating parallel proceedings and the advisability of thus creating multi-party proceedings, are looked at, again with reference also to the provisions of the rules of various arbitral institutions.

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ARBITRATION AND INSOLVENCY PROCEEDINGS

Author(s): Christian Dorda / Language(s): English Issue: 3/2009

In international arbitration, insolvency proceedings pertaining to the estate of a party can have diverging and unpredictable effects: Does the arbitration clause remain valid? Does insolvency result in a stay of pending arbitration? Do national insolvency proceedings acknowledge an arbitral award, in particular for verification purposes? No uniform answer is possible, as most recently demonstrated by the matter Elektrim vs Vivendi. The need for an international Convention going beyond the EC Regulation on Insolvency Proceedings is evident.

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THE NOTION OF TRANSNATIONAL PUBLIC POLICY AND ITS IMPACT ON JURISDICTION, ARBITRABILITY AND ADMISSIBILITY

Author(s): Marie Louise Seelig / Language(s): English Issue: 3/2009

Given the increasing influence of the concept of transnational public policy in both the commercial and the investment arbitration context and the critique attached to its application the author devotes this paper to an analysis of the scope and content of this concept and its impact on arbitral proceedings at the pre-merits stage. In particular, in a first part, the author gives guidelines on how to distinguish transnational public policy from other public policy concepts as applied in arbitral proceedings and gives guidance on how to determine its scope and content. Thereafter, the author analyzes in detail the impact of the notion transnational public policy on the arbitral tribunal’s affirmation or denial of jurisdiction, arbitrability and admissibility during arbitral proceedings. The author concludes that given the flexible content of transnational public policy, parties and arbitral tribunals should be cautious and carefully verify the objective existence and meaning of transnational public policy when considering applying it. Violations of substantive public policy are not necessarily postponed to the merits stage, but rather can have an impact on the arbitral tribunal’s assessment of jurisdiction, arbitrability and admissibility.

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THE LEGALITY AND LEGAL EFFECT OF KOSOVO’S PURPORTED SECESSION AND ENSUING ACTS OF RECOGNITION

Author(s): John Cerone / Language(s): English Issue: 3/2008

International law has very little to say about the legality of secession. This neutrality derives largely from the principle of non-intervention. Thus, in general, the legally significant issue is the effect of the attempted secession; i.e. whether a new state has come into existence. The principle of territorial integrity operates only to impose a duty on states to refrain from acts that encroach upon another state’s territorial sovereignty, which of course would include an obligation to refrain from assisting separatist movements in their pursuit of secession. It does not bind these movements as such. The legality of recognition is analytically distinct from the question of the legality of secession, though the two are interrelated. Recognition of newly independent states is generally lawful, so long as that new state has effectively established its independence in fact. However, it is increasingly accepted that it is unlawful to recognize territorial sovereignty acquired through a violation of the prohibition on the use of force, or violation of another peremptory norm of international law. It would also be unlawful to recognize a state where the Security Council has decided, with reference to a particular situation, that states must refrain from recognizing that state.

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RECOGNITION OF KOSOVO INDEPENDENCE AS A VIOLATION OF INTERNATIONAL LAW

Author(s): Miloš Jovanović / Language(s): English Issue: 3/2008

Has International Law been violated by the states which recognized the independence of Kosovo? The raised question has resulted from the recent secession of Kosovo and Metohia. It is a starting point of the theoretical analysis of the problem of creation and recognition of states in international law. Contrary to the classical international law doctrine according to which the act of recognition is purely a political act and not subject to legal appreciation, the author demonstrates that an act of recognition of a state by another state can be considered in legal terms and possibly declared unlawful. This seems particularly true in the case of independence of Kosovo and Metohia since the UNSC Resolution 1244 protects the sovereignty and territorial integrity of the Republic of Serbia.

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КОДИФИКАЦИЈА ПРАВА МЕЂУНАРОДНИХ УГОВОРА

Author(s): Stevan Đorđević / Language(s): Serbian Issue: 2/2006

The notion of 'contract' in International Law denotes any agreement concluded between two or more subjects of International Law (States, international organizations, etc.) regulated by the rules of International Law. As a rule, it is concluded in written form, sometimes orally. Notion of 'contract' is usually understood to encompass 'intention to create rights and obligations' and 'certain legal effect'. However, some authors drop 'intent' from the notion, since it is already covered by the fact that it is 'regulated by international law'. This source of International Law has already been established for quite some time. Subject matter of the law of international contracts is mixed, since it touches upon international, as well as domestic law (competence to conclude international agreements, etc.).

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ГЛОБАЛНА АДМИНИСТРАТИВНА КРИЗА ПАТЕНТНОГ СИСТЕМА

Author(s): Slobodan Marković / Language(s): Serbian Issue: 2/2006

Examining the global patent system from the point of view of administrative bodies deciding on granting patents, the author points out at constant tension existing between the very complex patenting procedures and increase of filings of patent applications, on one hand, and limited institutional capacities of patent administrations, on the other hand. Following the review of major international agreements serving the purpose of rationalization of the procedure for obtaining a patent for the same invention in more than one state, the explanation has been given of mechanisms establishing the three patent administrations – European Patent Office, United States Patent and Trademark Office and Japan Patent Office (the so called Trilateral) as informal pillars of the global patent system.

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ПРОТИВТУЖБА И КОМПЕНЗАЦИОНИ ПРИГОВОР У АРБИТРАЖНОМ СПОРУ

Author(s): Vladimir Pavićević / Language(s): Serbian Issue: 2/2005

Until recently, admissability of counterclaims before international commercial arbitrations has been treated in accordance with a relatively simple forumula -- one had to ascertain the objective scope of the arbitration agreement. With regard to set-off, however, admissability threshold has been less clear and was mostly dependant on relation between the main claim and set-off. Newly promulgated Swiss Arbitration Rules have, for the first time, enabled potential broadening of arbitral jurisdiction over set-off claims, enabling Swiss tribunals to adjudicate even those set-offs that are already subject to another arbitration clause or forum selection clause. This might lead to a potentially dangerous situation where such attraction of jurisdiction might lead to a conflict with another tribunal or court which has expressly been designated as competent with regard to relations which give rise to set-off. This triggers later dilemmas with regard to the reach of decisions on set-off and the possibility that the tribunal applies lis pendens rules in order to avoid conflicting decisions.

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