Sanja Djajic
University of Novi Sad, Faculty of Law, Novi Sad, Faculty Member
- University of Novi Sad, Faculty of law, Faculty Memberadd
- Professor of Public International Law at the University of Novi Sad School of Law (Serbia). Studied at law schools in... moreProfessor of Public International Law at the University of Novi Sad School of Law (Serbia). Studied at law schools in Serbia, United States and United Kingdom and was a visiting fellow at several universities. Professional experience: ICSID and UNCITRAL investment arbitration, ECtHR, ICJ. Academic interest: public international law, international dispute settlement, international investment law, human rights law.edit
This paper pays tribute to life and work of professor Dr. Slavko Stojković, a diplomat and state agent of the Kingdom of Yugoslavia. It is divided into five parts - introduction, short biography and three fields of his work -... more
This paper pays tribute to life and work of professor Dr. Slavko Stojković, a diplomat and state agent of the Kingdom of Yugoslavia. It is divided into five parts - introduction, short biography and three fields of his work - representation in international arbitral and judicial proceedings, where he made his principal achievements, diplomacy, and finally, legal writing, in which he also left a mark. The part on representation briefly mentions the cases Losinger (1935) and Pajzs, Csaky, Esterhazy (1935) before the Permanent Court of International Justice in which he acted as the state agent of Yugoslavia, the pathological arbitration S.E.E.E. v. Yugoslavia in which he was involved in various ways, and his role as the state agent of Yugoslavia before the German-Yugoslav and Hungaro-Yugoslav Mixed Arbitral Tribunals. Reference is made to sources that cover these cases in more detail. His diplomatic activity includes participation in the sessions of the League of Nations, and in partic...
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This chapter aims to provide a comprehensive framework for understanding how principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment... more
This chapter aims to provide a comprehensive framework for understanding how principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment covers different conceptualizations of the principle of good faith within the rules, arguments, and arbitral awards, but also the practical advantages it may provide for parties in the course of arbitral proceedings. The offered conceptual framework comprises the evaluation of the principle in general international law and in relation to international investment law and arbitration, overview of substantive and procedural derivatives of the principle, and overall assessment of the function and relevance of the principle in contemporary investment law, policy, and arbitration. How the good faith principle, within existing procedural concepts and substantive rules, but also as a self-standing standard, may play out is demonstrated by the overview of relevant arbitral jurisprudence and presented through different stages of an arbitral proceeding. States tend to rely on good faith to deny claimants’ rights to seize the tribunal (Article 41(5) of the ICSID Rules), to challenge jurisdiction or admissibility, to limit obligations arising under investment treaties or otherwise employ good faith as a defense in merits, and to minimize or exclude compensation. Claimants primarily rely on good faith as a part of the substantive standard of fair and equitable treatment, to expand interpretation of investment treaties and maximize their chances for compensation. Recent trends demonstrate the inherent balancing function of the good faith principle given that claimants and respondents alike rely on the good faith argument using it both as entitlement and defense, while arbitral tribunals have shown readiness to employ different variants of the good faith principle.
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The aim of this contribution is to examine the scope of the freedom of expression of private persons in their encounters with public servants while the latter is on duty. Such situations are bound to happen quite often, sometimes... more
The aim of this contribution is to examine the scope of the freedom of expression of private persons in their encounters with public servants while the latter is on duty. Such situations are bound to happen quite often, sometimes accompanied with intemperance and strong language, so the relevance of the application of human rights to these encounters could potentially be significant. Discussion will be presented against the case-law of the European Court of Human Rights in order to assess whether and to what extent freedom of expression protects against public servants. Given the tendency of the Court to set different scrutiny tests for different categories of expression, and to contextualize expressions and limitations imposed, the ambition of this contribution is to establish whether the Court has distilled a special set of rules for the use of strong language against civil servants while performing public duties. While a regular balancing exercise can include a variety of legitim...
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Domestic law plays an important role in investment treaty arbitration. But we know too little about this role. When should investment treaty tribunals engage with domestic law? How should investment treaty tribunals resolve matters of... more
Domestic law plays an important role in investment treaty arbitration. But we know too little about this role. When should investment treaty tribunals engage with domestic law? How should investment treaty tribunals resolve matters of domestic law? These questions, with significant ramifications for both the legitimacy of the investment treaty system and the arbitral mandate of the tribunal members, have received limited attention. Drawing on case-law, international law principles and comparative analysis, this book offers answers. Part I of the book examines three areas of investment law – the ‘fair and equitable treatment’ standard, expropriation and remedies – in which the role of domestic law has so far been underappreciated. It argues that tribunals are justified in drawing on domestic law as a relevant factor in their rulings on these three issues. Part II of the book examines how questions of domestic law should be resolved in investment arbitration. It proposes a normative framework for use by tribunals in ascertaining the contents of the domestic law to be applied. Part II then considers and dismisses certain preliminary objections to applying this framework, and it evaluates how tribunals have ruled on questions of domestic law to date. Investment treaty arbitration has endured much criticism in recent times, partly over fears of its encroachment on sovereignty. The book ultimately contends that closer attention by tribunals to one of the principal expressions of a state’s sovereignty – the elaboration of its domestic law – will diminish criticism of the field.
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This article tends to outline the scope and effect of the doctrine of precedent at the European Court of Human Rights. The overview starts with the concept of precedent in general international law and before international courts which... more
This article tends to outline the scope and effect of the doctrine of precedent at the European Court of Human Rights. The overview starts with the concept of precedent in general international law and before international courts which engineered the concept of de facto precedent. The evidence show that the European Court of Human Rights adopted the very same concept of de facto precedent on the grounds of legal certainty and stability and not as a matter of legal obligation. This article argues that the European Court, in addition to adopting the general trend on de facto precedent, has also devised its special concepts and doctrines of precedent in the form of pilot judgments and the concept “well-established case-law” under Article 28(1)b of the Convention. The article concludes with the analysis of the Constitutional Court case law in relation to the binding effect of the European Court of Human Rights judgments.
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This article critically evaluates the summary procedure introduced by Protocol No. 14 to the European Convention on Human Rights, adopted within the reform of the European Court of Human Rights system. The summary procedure, now set out... more
This article critically evaluates the summary procedure introduced by Protocol No. 14 to the European Convention on Human Rights, adopted within the reform of the European Court of Human Rights system. The summary procedure, now set out in Art. 28(1)b of the Convention, was instituted in order to facilitate expediency and to reduce the case load of the Court. This article argues that while judicial economy is a legitimate goal, the summary procedure under Art. 28(1)b has considerable deficiencies that undermine some of the systemic goals and core values of ECHR law. There is a manifest lack of remedies vis-à-vis the choice of the procedure, choice of applicable law, and no appeals against final decisions rendered in the course of the summary procedure. Notably, the concept of "well-established case-law" seems to be neither clear nor reliable, as evidenced in the cases analysed in the article. These cases, which involve the issue of socially- owned property in Serbia, serve...
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The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation... more
The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation are salient to the fact that the ECtHR has consistently provided a lesser level of protection to artistic expression than to political expression. The aim of this article is to challenge the approach of the Court to the freedom of artistic expression in relation to visual and performance arts. The critical evaluation is based on two different but complementary grounds: contemporary theory of art critique of the ECtHR’s understanding of art and critique based on the ECtHR’s own political freedom of expression cases. The argument of the authors is that the ECtHR approach to visual and performance arts as an exercise in ethics and aesthetics is contradicted by contemporary art theory and practice which invariably assumes the societal role of art, its po...
Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and... more
Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and needed. The aim of this article is to provide a methodological framework for examining the concept of creeping expropriation. In order to be successful a claim of creeping expropriation must prove that the damage was brought upon his investment by a composite act, comprised of different acts which are all attributable to the State and harmful to his property interests in a manner which is nearly equal to direct taking of property. An arbitral tribunal should identify all of those elements before it reaches the conclusion that the creeping expropriation has ensued. This article provides the overview of numerous cases in order to demonstrate the constitutive elements of the creeping expropriation concept where some of them – the notion of composite act a...
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The authors analyse the changed landscape of the EU BIT policy following the Achmea decision and the 2020 Termination Agreement, in particular, their relevance for candidate countries such as Serbia. The perceived risks strongly suggest... more
The authors analyse the changed landscape of the EU BIT policy following the Achmea decision and the 2020 Termination Agreement, in particular, their relevance for candidate countries such as Serbia. The perceived risks strongly suggest that some action must be taken before the accession to avoid becoming caught between conflicting obligations under EU law and the BITs, as happened to respondent countries in the cases of Micula and Magyar Farming Company. The potential for conflicts exists in the case of Serbia as well because it already has an obligation to comply with EU law in areas such as competition and state aid law, which may cause it to inadvertently breach investors’ rights under the BITs. Various options that a candidate country can pursue to adjust its bilateral investment treaties to EU law standards are considered in search of the best approach. Difficulties that may be encountered due to the premature termination of sunset clauses and the retroactive termination of ar...
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This chapter aims to provide a comprehensive framework for understanding how principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment... more
This chapter aims to provide a comprehensive framework for understanding how principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment covers different conceptualizations of the principle of good faith within the rules, arguments, and arbitral awards, but also the practical advantages it may provide for parties in the course of arbitral proceedings. The offered conceptual framework comprises the evaluation of the principle in general international law and in relation to international investment law and arbitration, overview of substantive and procedural derivatives of the principle, and overall assessment of the function and relevance of the principle in contemporary investment law, policy, and S. Djajić (*) Department for International Law, School of Law, University of Novi Sad, Novi Sad, Serbia e-mail: sdjajic@pf.uns.ac.rs © Springer Nature Singapore Pte Ltd. 2020 J. Chaisse et al...
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This article tends to outline the scope and effect of the doctrine of precedent at the European Court of Human Rights. The overview starts with the concept of precedent in general international law and before international courts which... more
This article tends to outline the scope and effect of the doctrine of precedent at the European Court of Human Rights. The overview starts with the concept of precedent in general international law and before international courts which engineered the concept of de facto precedent. The evidence show that the European Court of Human Rights adopted the very same concept of de facto precedent on the grounds of legal certainty and stability and not as a matter of legal obligation. This article argues that the European Court, in addition to adopting the general trend on de facto precedent, has also devised its special concepts and doctrines of precedent in the form of pilot judgments and the concept “well-established case-law” under Article 28(1)b of the Convention. The article concludes with the analysis of the Constitutional Court case law in relation to the binding effect of the European Court of Human Rights judgments.
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This article critically evaluates the summary procedure introduced by Protocol No. 14 to the European Convention on Human Rights, adopted within the reform of the European Court of Human Rights system. The summary procedure, now set out... more
This article critically evaluates the summary procedure introduced by Protocol No. 14 to the European Convention on Human Rights, adopted within the reform of the European Court of Human Rights system. The summary procedure, now set out in Art. 28(1)b of the Convention, was instituted in order to facilitate expediency and to reduce the case load of the Court. This article argues that while judicial economy is a legitimate goal, the summary procedure under Art. 28(1)b has considerable deficiencies that undermine some of the systemic goals and core values of ECHR law. There is a manifest lack of remedies vis-à-vis the choice of the procedure, choice of applicable law, and no appeals against final decisions rendered in the course of the summary procedure. Notably, the concept of "well-established case-law" seems to be neither clear nor reliable, as evidenced in the cases analysed in the article. These cases, which involve the issue of socially- owned property in Serbia, serve...
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The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation... more
The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation are salient to the fact that the ECtHR has consistently provided a lesser level of protection to artistic expression than to political expression. The aim of this article is to challenge the approach of the Court to the freedom of artistic expression in relation to visual and performance arts. The critical evaluation is based on two different but complementary grounds: contemporary theory of art critique of the ECtHR’s understanding of art and critique based on the ECtHR’s own political freedom of expression cases. The argument of the authors is that the ECtHR approach to visual and performance arts as an exercise in ethics and aesthetics is contradicted by contemporary art theory and practice which invariably assumes the societal role of art, its po...
Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and... more
Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and needed. The aim of this article is to provide a methodological framework for examining the concept of creeping expropriation. In order to be successful a claim of creeping expropriation must prove that the damage was brought upon his investment by a composite act, comprised of different acts which are all attributable to the State and harmful to his property interests in a manner which is nearly equal to direct taking of property. An arbitral tribunal should identify all of those elements before it reaches the conclusion that the creeping expropriation has ensued. This article provides the overview of numerous cases in order to demonstrate the constitutive elements of the creeping expropriation concept where some of them – the notion of composite act a...
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The authors analyse the changed landscape of the EU BIT policy following the Achmea decision and the 2020 Termination Agreement, in particular, their relevance for candidate countries such as Serbia. The perceived risks strongly suggest... more
The authors analyse the changed landscape of the EU BIT policy following the Achmea decision and the 2020 Termination Agreement, in particular, their relevance for candidate countries such as Serbia. The perceived risks strongly suggest that some action must be taken before the accession to avoid becoming caught between conflicting obligations under EU law and the BITs, as happened to respondent countries in the cases of Micula and Magyar Farming Company. The potential for conflicts exists in the case of Serbia as well because it already has an obligation to comply with EU law in areas such as competition and state aid law, which may cause it to inadvertently breach investors’ rights under the BITs. Various options that a candidate country can pursue to adjust its bilateral investment treaties to EU law standards are considered in search of the best approach. Difficulties that may be encountered due to the premature termination of sunset clauses and the retroactive termination of ar...
Research Interests:
This chapter aims to provide a comprehensive framework for understanding how principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment... more
This chapter aims to provide a comprehensive framework for understanding how principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment covers different conceptualizations of the principle of good faith within the rules, arguments, and arbitral awards, but also the practical advantages it may provide for parties in the course of arbitral proceedings. The offered conceptual framework comprises the evaluation of the principle in general international law and in relation to international investment law and arbitration, overview of substantive and procedural derivatives of the principle, and overall assessment of the function and relevance of the principle in contemporary investment law, policy, and S. Djajić (*) Department for International Law, School of Law, University of Novi Sad, Novi Sad, Serbia e-mail: sdjajic@pf.uns.ac.rs © Springer Nature Singapore Pte Ltd. 2020 J. Chaisse et al...
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Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and... more
Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and needed. The aim of this article is to provide a methodological framework for examining the concept of creeping expropriation. In order to be successful a claim of creeping expropriation must prove that the damage was brought upon his investment by a composite act, comprised of different acts which are all attributable to the State and harmful to his property interests in a manner which is nearly equal to direct taking of property. An arbitral tribunal should identify all of those elements before it reaches the conclusion that the creeping expropriation has ensued. This article provides the overview of numerous cases in order to demonstrate the constitutive elements of the creeping expropriation concept where some of them – the notion of composite act a...
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There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but... more
There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but was developed as a separate topic of the UN International Law Commission and extensively used in the area of economic and trade liberalization. MFN has been the cornerstone of the GATT/WTO and consistently present in bilateral investment treaties (BITs). Given that there are around 2,800 BITs it is certain that MFN has been markedly present in international treaty law. On its face MFN clause provides a very powerful protection by equalizing the beneficiary of the MFN clause with all other persons (entities, States) with respect to rights and benefits. As the practice has shown its relevance is both substantive and procedural. However, this paper will not dwell much on procedural and substantive contents of the MFN. It will focus on the way the MFN is being employed as a part of litigation strategy in international proceedings. An overview of cases tends to show that MFN clause is used rather as a cause of action than as a tool for ensuring substantive protection before the dispute arises. In other words, there are few, if any, examples, which show that applicants in international investment arbitration do not invoke MFN clause while trying to ensure the most favored nation treatment during the performance of their investment, but it is rather a belated MFN argument raised by the investor before the investment tribunal for the first time. In other words, investors rarely use the clause to have what would seem to be its primary purpose: substantive protection. If this argument is raised for the first time in the proceeding, this means that MFN clause is perceived as a cause of action rather than as a genuine substantive guarantee. This approach of applicants and arbitral tribunals is criticized by the author from both deontological and normative perspective. Very simple testing of certain MFN awards can demonstrate their fallacy: retroactive construct of MFN clause makes the duty impossible to perform. Given a very genuine concept of the MFN and its effect, it is absurd to assume its automatic application. The main argument of the author is that the way the MFN is used as a cause of action demonstrates that it was never the intention of the applicants to use this clause as a ground for substantive guarantee but only for litigation strategy.
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There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but... more
There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but was developed as a separate topic of the UN International Law Commission and extensively used in the area of economic and trade liberalization. MFN has been the cornerstone of the GATT/WTO and consistently present in bilateral investment treaties (BITs). Given that there are around 2,800 BITs it is certain that MFN has been markedly present in international treaty law. On its face MFN clause provides a very powerful protection by equalizing the beneficiary of the MFN clause with all other persons (entities, States) with respect to rights and benefits. As the practice has shown its relevance is both substantive and procedural. However, this paper will not dwell much on procedural and substantive contents of the MFN. It will focus on the way the MFN is being employed as a part of litigation strategy in international proceedings. An overview of cases tends to show that MFN clause is used rather as a cause of action than as a tool for ensuring substantive protection before the dispute arises. In other words, there are few, if any, examples, which show that applicants in international investment arbitration do not invoke MFN clause while trying to ensure the most favored nation treatment during the performance of their investment, but it is rather a belated MFN argument raised by the investor before the investment tribunal for the first time. In other words, investors rarely use the clause to have what would seem to be its primary purpose: substantive protection. If this argument is raised for the first time in the proceeding, this means that MFN clause is perceived as a cause of action rather than as a genuine substantive guarantee. This approach of applicants and arbitral tribunals is criticized by the author from both deontological and normative perspective. Very simple testing of certain MFN awards can demonstrate their fallacy: retroactive construct of MFN clause makes the duty impossible to perform. Given a very genuine concept of the MFN and its effect, it is absurd to assume its automatic application. The main argument of the author is that the way the MFN is used as a cause of action demonstrates that it was never the intention of the applicants to use this clause as a ground for substantive guarantee but only for litigation strategy.
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Author explores different temporal aspects of jurisdiction of International Court of Justice, European Court for Human Rights and international investment arbitrations. Temporal limitations are two-fold: non-retroactivity of international... more
Author explores different temporal aspects of jurisdiction of International Court of Justice, European Court for Human Rights and international investment arbitrations. Temporal limitations are two-fold: non-retroactivity of international acts, on one hand, and ratione temporis conditions for each and every international forum, on the other. Despite differences courts tend to conceptualize common elements across the borders of different jurisdictional rules. The rule of non-retroactivity will find its application before different fora, but discrepancies will emerge with respect to concepts of continuous and composite acts which potentially may overcome temporal limitations. This article explores intertemporal rule and non-retroactivity within the meaning of Article 28 of the Vienna Convention on the Law of Treaties and Articles 13-15 of ILC Articles on State Responsibility.
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Copyright (c) 1999 Hastings College of the Law Hastings International and Comparative Law Review. Fall, 1999. 23 Hastings Int'l & Comp. L. Rev. 27. LENGTH: 34733 words The Effect of International Court of Justice Decisions ...
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The aim of this contribution is to examine the scope of the freedom of expression of private persons in their encounters with public servants while the latter is on duty. Such situations are bound to happen quite often, sometimes... more
The aim of this contribution is to examine the scope of the freedom of expression of private persons in their encounters with public servants while the latter is on duty. Such situations are bound to happen quite often, sometimes accompanied with intemperance and strong language, so the relevance of the application of human rights to these encounters could potentially be significant. Discussion will be presented against the case-law of the European Court of Human Rights in order to assess whether and to what extent freedom of expression protects against public servants. Given the tendency of the Court to set different scrutiny tests for different categories of expression, and to contextualize expressions and limitations imposed, the ambition of this contribution is to establish whether the Court has distilled a special set of rules for the use of strong language against civil servants while performing public duties. While a regular balancing exercise can include a variety of legitimate interests that potentially can limit freedom of expression, one particular interest will be singled out, that is the right to privacy of public servants and how the balancing of the right to the reputation of public servants with the freedom of expression of private persons can play out.
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The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation... more
The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation are salient to the fact that the ECtHR has consistently provided a lesser level of protection to artistic expression than to political expression. The aim of this article is to challenge the approach of the Court to the freedom of artistic expression in relation to visual and performance arts. The critical evaluation is based on two different but complementary grounds: contemporary theory of art critique of the ECtHR's understanding of art and critique based on the ECtHR's own political freedom of expression cases. The argument of the authors is that the ECtHR approach to visual and performance arts as an exercise in ethics and aesthetics is contradicted by contemporary art theory and practice which invariably assumes the societal role of art, its potential subversive and transformative function within a society at large, and, ultimately, its lato sensu political value. In addition, visual and performance arts are powerful yet fragile instruments for delivering the debate to society at large. Viewed from this perspective, artistic expression has the same beneficial effect on a democratic society as political expression stricto sensu. Therefore, the rationales underpinning protection of political expression are essentially the same as those of artistic expression, therefore the ECtHR should extend the same level of legal protection to arts and artists to keep valuable social dialogue alive.
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Following the adoption of the ruling in the Achmea case by the Court of Justice of the European Union on 6 March 2018, the immediate question was whether this particular decision could have the effect of exceeding the framework within... more
Following the adoption of the ruling in the Achmea case by the Court of Justice of the European Union on 6 March 2018, the immediate question was whether this particular decision could have the effect of exceeding the framework within which it was rendered. In other words, the question was whether Achmea could potentially have an effect on both EU investment policy and pending investment arbitration cases. The EU and its Member States employed the Achmea decision in many ways not only for redefining its investment policy objectives but also for reinvigorating the intra-EU debate within investment arbitration on the incompatibility of BITs with EU law. All investment tribunals rejected the relevance and rationale of the Achmea decision. The purpose of this contribution is to examine the reasons used by investment tribunals to reject Achmea and the renewed intra-EU BITs preliminary objections. The analysis covers twelve post-Achmea investment cases based on intra-EU BITs. Despite a wh...
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Provisional application is a treaty mechanism which effectively enables the enforcement and application of treaties despite the fact that such a treaty has not yet become lex perfecta, i.e. it has not become a valid law either due to the... more
Provisional application is a treaty mechanism which effectively enables the enforcement and application of treaties despite the fact that such a treaty has not yet become lex perfecta, i.e. it has not become a valid law either due to the lack of consent of the State or because the treaty itself has not gained sufficient number of ratifications to enter into force. The purpose of the provisional application mechanism is thus to bridge the gap between the signature or ratification and the final entry into force of the treaty. The aim of this article is to explore the concept of provisional application of treaties within the meaning of the Vienna Convention on the Law of Treaties (1969) in light of the awards in several international investment arbitrations where the provisional application of the Energy Charter Treaty (1994) provided for the jurisdiction of international arbitral tribunals. The article begins with the overview of the general rule and its assessment in terms of its ben...
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Anka Gođevac Subbotić (1890–1983) bila je međunarodna pravnica, plodan pravni pisac i književnica, novinarka i publicista, borac za prava žena, diplomata i aktivistkinja. Prvi je doktor međunarodnog prava, prva žena doktor prava i druga... more
Anka Gođevac Subbotić (1890–1983) bila je međunarodna pravnica, plodan pravni pisac i književnica, novinarka i publicista, borac za prava žena, diplomata i aktivistkinja. Prvi je doktor međunarodnog prava, prva žena doktor prava i druga žena doktor nauka na Beogradskom univerzitetu. Njena doktorska disertacija i radovi iz međunarodnog prava bavili su se pitanjima međunarodnog pravosuđa i međunarodne sudske prakse. Bila je zvanična predstavnica Kraljevine Jugoslavije na Haškoj konferenciji o kodifikaciji međunarodnog prava 1930. godine, član delegacije Kraljevine Jugoslavije na Trećoj balkanskoj konferenciji u Bukureštu 1932. godine i član Komiteta eksperata Lige naroda za izučavanje pravnog položaja žena (1938–1940). Istovremeno je objavila dve knjige putopisa, više književnih eseja, kritika i članaka iz oblasti istorije književnosti. Društveno se angažovala za poboljšanje položaja i prava žena, a neposredno je učestvovala u događajima važnim za istoriju Jugoslavije. Bila je bliska sa viđenim ljudima onog vremena, koji su o poznanstvu sa njom ostavili pisani trag. Iako je bila obrazovana i aktivna u društvenom životu Kraljevine Jugoslavije, i kasnije u emigraciji u SAD, i imala zanimljivu ličnu i profesionalnu biografiju i brojne pionirske uspehe na raznim poljima, danas se malo zna o njenom životu i radu. Čini se da je dr Anka Gođevac Subbotić zaboravlјena, a sigurno je zaslužila mesto u našoj pravnoj istoriji i kulturnoj baštini.
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The authors analyse the changed landscape of the EU BIT policy following the Achmea decision and the 2020 Termination Agreement, in particular, their relevance for candidate countries such as Serbia. The perceived risks strongly suggest... more
The authors analyse the changed landscape of the EU BIT policy following the Achmea decision and the 2020 Termination Agreement, in particular, their relevance for candidate countries such as Serbia. The perceived risks strongly suggest that some action must be taken before the accession to avoid becoming caught between conflicting obligations under EU law and the BITs, as happened to respondent countries in the cases of Micula and Magyar Farming Company. The potential for conflicts exists in the case of Serbia as well because it already has an obligation to comply with EU law in areas such as competition and state aid law, which may cause it to inadvertently breach investors’ rights under the BITs. Various options that a candidate country can pursue to adjust its bilateral investment treaties to EU law standards are considered in search of the best approach. Difficulties that may be encountered due to the premature termination of sunset clauses and the retroactive termination of arbitration clauses in pending arbitrations lead the authors to conclude that certain adjustments to the course of action adopted within the EU are called for. The proposed action in the case of Serbia consists of consensually amending the 22 Serbia-EU member state BITs following a two-step procedure so that the sunset clauses are terminated at once, whereas the remaining provisions of the BITs are designated by the contracting parties to be terminated on the date of accession. To prevent treaty shopping, these amendments need to be accompanied by comprehensive reform of Serbia’s other BITs that contain overly broad definitions of investors and investments. Some alternative approaches are also taken into consideration, such as the replacement of ISDS with other forms of dispute resolution and the replacement of the Serbia-EU member state BITs with other types of agreements. The candidate countries are advised to adjust their pre-accession commitments, both procedural and substantive, in a timely manner with the incoming EU obligations. These inevitable adjustments should be pursued cautiously by candidate countries to minimise risks and maximise their bargaining power.
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Following the adoption of the ruling in the Achmea case by the Court of Justice of the European Union on 6 March 2018, the immediate question was whether this particular decision could have the effect of exceeding the framework within... more
Following the adoption of the ruling in the Achmea case by the Court of Justice of the European Union on 6 March 2018, the immediate question was whether this particular decision could have the effect of exceeding the framework within which it was rendered. In other words, the question was whether Achmea could potentially have an effect on both EU investment policy and pending investment arbitration cases. The EU and its Member States employed the Achmea decision in many ways not only for redefining its investment policy objectives but also for reinvigorating the intra-EU debate within investment arbitration on the incompatibility of BITs with EU law. All investment tribunals rejected the relevance and rationale of the Achmea decision. The purpose of this contribution is to examine the reasons used by investment tribunals to reject Achmea and the renewed intra-EU BITs preliminary objections. The analysis covers twelve post-Achmea investment cases based on intra-EU BITs. Despite a whole set of differences, in terms of applicable BITs and different arbitration rules, these tribunals were unanimous in reasserting the authority of ISDS over EU law.
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The retroactive application of national law to arbitration agreements is discussed in light of two cases: the Permanent Court of Justice case of Losinger v. the Kingdom of Yugoslavia (1935-1936) and the ICSID case of ATA Construction,... more
The retroactive application of national law to arbitration agreements is discussed in light of two cases: the Permanent Court of Justice case of Losinger v. the Kingdom of Yugoslavia (1935-1936) and the ICSID case of ATA Construction, Industrial and Trading Company v. Jordan (2008-2010). Although decided by different tribunals spanning nearly 80 years, the issues and arguments raised therein are similar because, in both cases, state responsibility was at stake due to the change of lex arbitri invalidating the arbitration agreement that was already in place in the contract entered into between the state and a private party. The PCIJ did not deliver the judgment in Losinger but the arguments heard therein were re-examined in ATA v Jordan. While the retroactive invalidation of an arbitration clause may amount to an internationally wrongful act, it remains correct to argue that it is primarily upon national courts to decide on validity and interpretation of national arbitration law.