International arbitration emerged as a response to cross-border trade and foreign investments. It is an instrument which enables the uninterrupted flow of foreign capital which has a significant impact on the national economy, particularly considering that arbitral awards are enforced in national jurisdictions. The profit-oriented economic trend and its impact on individual states is even more visible in international investments, given that the foreign investor who operates on the territory of a Host State is included not only in economic but also in social affairs of that State. This poses a challenge: how should a State preserve national interests? Referring to the relevant provisions of the New York Convention (1958) and the ICSID Convention (1965), the author elaborates on the idea that public policy may be used in the enforcement stage as justification for non-compliance with the rendered arbitral award. The author introduces relevant arbitration practice that has challenged the interpretation of Article 54 of the ICSID Convention, and analyzes the impact it has had on the ICSID system.
{"title":"THE ENFORCEMENT OF ARBITRAL AWARDS UNDER THE ICSID CONVENTION AND PUBLIC POLICY","authors":"Kristina Z. Stevanović","doi":"10.22190/fulp2202105s","DOIUrl":"https://doi.org/10.22190/fulp2202105s","url":null,"abstract":"International arbitration emerged as a response to cross-border trade and foreign investments. It is an instrument which enables the uninterrupted flow of foreign capital which has a significant impact on the national economy, particularly considering that arbitral awards are enforced in national jurisdictions. The profit-oriented economic trend and its impact on individual states is even more visible in international investments, given that the foreign investor who operates on the territory of a Host State is included not only in economic but also in social affairs of that State. This poses a challenge: how should a State preserve national interests? Referring to the relevant provisions of the New York Convention (1958) and the ICSID Convention (1965), the author elaborates on the idea that public policy may be used in the enforcement stage as justification for non-compliance with the rendered arbitral award. The author introduces relevant arbitration practice that has challenged the interpretation of Article 54 of the ICSID Convention, and analyzes the impact it has had on the ICSID system.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131607003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper explores the issues of active legitimacy to be a party in administrative dispute proceedings and the representation and protection of parties’ rights before the Administrative Court, established as a court of special jurisdiction by the Act on Seats and Areas of Courts and Public Prosecutor's Offices which entered into force in January 2010. The author first examines who can be the plaintiff, the defendant, and the interested person in an administrative dispute, and then focuses on the rules on representing the parties before this specialized court. Subsequently, the author explores the current case law established by the Administrative Court.
{"title":"PARTIES IN ADMINISTRATIVE DISPUTES","authors":"Ana Katić","doi":"10.22190/fulp2201033k","DOIUrl":"https://doi.org/10.22190/fulp2201033k","url":null,"abstract":"The paper explores the issues of active legitimacy to be a party in administrative dispute proceedings and the representation and protection of parties’ rights before the Administrative Court, established as a court of special jurisdiction by the Act on Seats and Areas of Courts and Public Prosecutor's Offices which entered into force in January 2010. The author first examines who can be the plaintiff, the defendant, and the interested person in an administrative dispute, and then focuses on the rules on representing the parties before this specialized court. Subsequently, the author explores the current case law established by the Administrative Court.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131914729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While a breach of contract implies the failure of one party to fulfil the obligations arising from the contract, the fundamental breach of contract is an aggravated form of breach of contract. The concept of the fundamental breach of contract of sale is recognized in Article 25 of the CISG (UN Convention on Contracts for the International Sale of Goods, 1980). In an ordinary breach of contract of sales, the applicable legal remedies are ordinary legal remedies (such as substitution of goods, damages). In case of a fundamental (substantial) breach, the unilateral declaration of termination of the contract of sale is used as the last resort (to void the contract). Given that it is perceived as a special aggravated type of breach of contract of sale, the fundamental breach has to be carefully analysed in more detail.
{"title":"THE FUNDAMENTAL BREACH OF CONTRACT OF SALE UNDER THE CISG","authors":"Yunus Emre Ay","doi":"10.22190/fulp2201025a","DOIUrl":"https://doi.org/10.22190/fulp2201025a","url":null,"abstract":"While a breach of contract implies the failure of one party to fulfil the obligations arising from the contract, the fundamental breach of contract is an aggravated form of breach of contract. The concept of the fundamental breach of contract of sale is recognized in Article 25 of the CISG (UN Convention on Contracts for the International Sale of Goods, 1980). In an ordinary breach of contract of sales, the applicable legal remedies are ordinary legal remedies (such as substitution of goods, damages). In case of a fundamental (substantial) breach, the unilateral declaration of termination of the contract of sale is used as the last resort (to void the contract). Given that it is perceived as a special aggravated type of breach of contract of sale, the fundamental breach has to be carefully analysed in more detail.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134234004","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The incidence of banditry in Nigeria has assumed an unprecedented mien which constitutes a major bane to the hitherto troubled security in the country. The phenomenon has created a multi-pronged security challenge that has amplified the spate of destruction of life and property and displacement. Meanwhile, inchoate and nascent erudition is still associated with the incidence of banditry in Nigeria. Thus, this study attempts to satiate this lacuna by annotating the incidence from the Routine Activity Theory standpoint. The study adopts a descriptive and analytical armchair analysis which relies on a secondary source of data. The study found out that the menace of banditry is prevalent in Nigeria, particularly in the Northwest. Some of the methods favoured by bandits include armed robbery, cattle rustling, arson, sexual violence, kidnapping, raiding villages and schools, looting, stealing livestock and gruesome killing. The incidence is attributable to the conflicts between farmers and herders for scarce resources, the influx of Small Arms and Light Weapons (SALW) into Nigeria, an overwhelmed, weak and understaffed security apparatus, illegal mining, slow response and poor engagement of the Nigerian government, and a vast ungoverned forest territory. To adequately address the incidence of banditry in Nigeria, the study recommends a prevention strategy that focuses on the three major areas identified by the Routine Activity Theory: the motivated offender, the suitable target, and the absence of guardianship
{"title":"A WEB OF CRIMES, ROUTINE ACTIVITY THEORY AND THE DEEPENING SCOURGE OF ARMED BANDITRY IN NIGERIA","authors":"T. Akinyetun, K. Bakare","doi":"10.22190/fulp2201061a","DOIUrl":"https://doi.org/10.22190/fulp2201061a","url":null,"abstract":"The incidence of banditry in Nigeria has assumed an unprecedented mien which constitutes a major bane to the hitherto troubled security in the country. The phenomenon has created a multi-pronged security challenge that has amplified the spate of destruction of life and property and displacement. Meanwhile, inchoate and nascent erudition is still associated with the incidence of banditry in Nigeria. Thus, this study attempts to satiate this lacuna by annotating the incidence from the Routine Activity Theory standpoint. The study adopts a descriptive and analytical armchair analysis which relies on a secondary source of data. The study found out that the menace of banditry is prevalent in Nigeria, particularly in the Northwest. Some of the methods favoured by bandits include armed robbery, cattle rustling, arson, sexual violence, kidnapping, raiding villages and schools, looting, stealing livestock and gruesome killing. The incidence is attributable to the conflicts between farmers and herders for scarce resources, the influx of Small Arms and Light Weapons (SALW) into Nigeria, an overwhelmed, weak and understaffed security apparatus, illegal mining, slow response and poor engagement of the Nigerian government, and a vast ungoverned forest territory. To adequately address the incidence of banditry in Nigeria, the study recommends a prevention strategy that focuses on the three major areas identified by the Routine Activity Theory: the motivated offender, the suitable target, and the absence of guardianship","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116605371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A forensic interview is a step forward in preventing the secondary victimization of children in situations where they are witnesses to a criminal event. However, its implementation requires not only appropriate training of interviewers but also appropriate preparation for each individual case. The author first defines the concept of forensic interview with a child and explain its stages. In the second part of the paper, the author considers the normative bases for its introduction in the Republic of Serbia, and analyzes the forensic interviews conducted so far by the Social Welfare Center "St. Sava" in Niš.
{"title":"FORENSIC INTERVIEWS WITH CHILDREN","authors":"Darko Dimovski","doi":"10.22190/fulp2201001d","DOIUrl":"https://doi.org/10.22190/fulp2201001d","url":null,"abstract":"A forensic interview is a step forward in preventing the secondary victimization of children in situations where they are witnesses to a criminal event. However, its implementation requires not only appropriate training of interviewers but also appropriate preparation for each individual case. The author first defines the concept of forensic interview with a child and explain its stages. In the second part of the paper, the author considers the normative bases for its introduction in the Republic of Serbia, and analyzes the forensic interviews conducted so far by the Social Welfare Center \"St. Sava\" in Niš.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121737462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The codification of sources of international law is a monolith and lengthy project. After many decades of codifying international treaty law and international customary law, the International Law Commission has finally decided to tackle the topic of General principles of law as late as 2018. The codification of general legal principles is challenging for many reasons: the unclear or ambiguous practice of states and international justice, lack of unity of opinion in the doctrine, and terminological inconsistency. However, in the current debate within the International Law Commission, the most controversial issue is the idea of the “two-category” approach which entails their dual origin. Namely, they can be derived not only from national legal systems but also from the international legal order itself. The paper provides an overview of the work of the International Law Commission accomplished so far, with the aim to shed light on certain aspects of the proposed course of action.
{"title":"ILC WORK ON THE CODIFICATION OF GENERAL LEGAL PRINCIPLES","authors":"Sanja Đorđević Aleksovski","doi":"10.22190/fulp2201013d","DOIUrl":"https://doi.org/10.22190/fulp2201013d","url":null,"abstract":"The codification of sources of international law is a monolith and lengthy project. After many decades of codifying international treaty law and international customary law, the International Law Commission has finally decided to tackle the topic of General principles of law as late as 2018. The codification of general legal principles is challenging for many reasons: the unclear or ambiguous practice of states and international justice, lack of unity of opinion in the doctrine, and terminological inconsistency. However, in the current debate within the International Law Commission, the most controversial issue is the idea of the “two-category” approach which entails their dual origin. Namely, they can be derived not only from national legal systems but also from the international legal order itself. The paper provides an overview of the work of the International Law Commission accomplished so far, with the aim to shed light on certain aspects of the proposed course of action.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128499103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The subject matter of this paper is legal protection against administrative silence, i.e. non-performance of the administration. The first part of the paper explores the concept of administrative silence and presents two dominant models of administrative silence: the negative model and the positive model. The second part focuses on administrative proceedings dealing with administrative silence, with specific reference to statutory time limits pertaining to legal protection against administrative silence. The third part elaborates on the consequences and effects of initiated proceedings, including available legal options and solutions for resolving such disputes in the future. The fourth part provides an example of proceedings in an administrative silence case. In conclusion, the author sums up the key issues that are have to be addressed in order to improve the efficiency and effectiveness of proceedings in such cases. The problem of legal protection against administrative silence is surely not an important subject in the legal science but it certainly has a huge practical effect on the establishment of the legal system and citizens’ trust in it.
{"title":"LEGAL PROTECTION AGAINST ADMINISTRATIVE SILENCE","authors":"B. Blagojevic","doi":"10.22190/fulp2102151b","DOIUrl":"https://doi.org/10.22190/fulp2102151b","url":null,"abstract":"The subject matter of this paper is legal protection against administrative silence, i.e. non-performance of the administration. The first part of the paper explores the concept of administrative silence and presents two dominant models of administrative silence: the negative model and the positive model. The second part focuses on administrative proceedings dealing with administrative silence, with specific reference to statutory time limits pertaining to legal protection against administrative silence. The third part elaborates on the consequences and effects of initiated proceedings, including available legal options and solutions for resolving such disputes in the future. The fourth part provides an example of proceedings in an administrative silence case. In conclusion, the author sums up the key issues that are have to be addressed in order to improve the efficiency and effectiveness of proceedings in such cases. The problem of legal protection against administrative silence is surely not an important subject in the legal science but it certainly has a huge practical effect on the establishment of the legal system and citizens’ trust in it.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123623853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Given the importance of water for the survival of humankind and the entire living world, and considering that many parts of the world are running out of water, the human right to water has gradually become an issue of considerable concern worldwide. We should also bear in mind that water has an economic value. It is often figuratively called “the blue gold’’ or “the oil of the 21st century’’, which makes it a precious commodity and an object of market exchange. In such circumstances, it is necessary to make a strong turn and establish the human right to water in the highest legal documents. In this paper, the author points to the importance of incorporating the right to water in the constitutionally guaranteed rights. The constitutional regulation and protection of this human right would create conditions to protect the general public interest, which should prevail over the individual commercial interests in water privatization. The starting point for this analysis will be the existing normative framework which has been established at the international level, involving the key role of the UN. Exercising the right to water will also be explored from the perspective of the ECtHR jurisprudence. The paper will also point to the examples of constitutional provisions in the countries which have recognized this right.
{"title":"HUMAN RIGHT TO WATER: BETWEEN THE CONSTITUTION AND MARKET INTERESTS","authors":"Maja Nastić","doi":"10.22190/fulp2102097n","DOIUrl":"https://doi.org/10.22190/fulp2102097n","url":null,"abstract":"Given the importance of water for the survival of humankind and the entire living world, and considering that many parts of the world are running out of water, the human right to water has gradually become an issue of considerable concern worldwide. We should also bear in mind that water has an economic value. It is often figuratively called “the blue gold’’ or “the oil of the 21st century’’, which makes it a precious commodity and an object of market exchange. In such circumstances, it is necessary to make a strong turn and establish the human right to water in the highest legal documents. In this paper, the author points to the importance of incorporating the right to water in the constitutionally guaranteed rights. The constitutional regulation and protection of this human right would create conditions to protect the general public interest, which should prevail over the individual commercial interests in water privatization. The starting point for this analysis will be the existing normative framework which has been established at the international level, involving the key role of the UN. Exercising the right to water will also be explored from the perspective of the ECtHR jurisprudence. The paper will also point to the examples of constitutional provisions in the countries which have recognized this right.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133015486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
People with disabilities are a particularly vulnerable to victimization by violence. This risk increases due to their dependence on other family members. This negative phenomenon has to be observed not only from the criminological perspective but also from the sociological perspective because violence does not happen outside the society. In this paper, the authors will indicate the “dark number” of crime of violence against people with disabilities, with specific reference to violence against people with mental disabilities in residential institutions. The aim of this paper is to point out to possible social responses to violence against people with disabilities.
{"title":"VIOLENCE AGAINST PERSONS WITH DISABILITIES: THE “DARK NUMBER” OF CRIME","authors":"Filip Mirić, Aleksandra Nikolajević","doi":"10.22190/fulp2102111m","DOIUrl":"https://doi.org/10.22190/fulp2102111m","url":null,"abstract":"People with disabilities are a particularly vulnerable to victimization by violence. This risk increases due to their dependence on other family members. This negative phenomenon has to be observed not only from the criminological perspective but also from the sociological perspective because violence does not happen outside the society. In this paper, the authors will indicate the “dark number” of crime of violence against people with disabilities, with specific reference to violence against people with mental disabilities in residential institutions. The aim of this paper is to point out to possible social responses to violence against people with disabilities.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128900533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, the authors provide a precise terminological demarcation of the following behavioral concepts: “nudge”, “shove”, and “budge”. Based on these concepts and three defined criteria (freedom/coercion, internalities/externalities, and behavioral insights), the authors explain various behavioral public policies and their practical implications: 1) the behavioral public policy of libertarian-paternalistic orientation (the “nudge policy”); 2) the policy of coercive paternalism; and 3) the behavioral regulation of externalities. Then, the authors provide a terminological distinction between the concept of “sludge” and “nudge”, and discuss their potential misuses. Finally, based on the level of “frictions”, the authors distinguish between the concepts of “administrative burden” and “sludge”, as well as the types of public policies that are recommended for their reduction, particularly “sludge audits”. The conclusion is that all these public policies are very close, slightly different in terms of the subject matter of regulation and the intensity of encroachment on the freedoms of individuals, but that they all have a common root in behavioral insights.
{"title":"NUDGE, SHOVE, BUDGE, SLUDGE AND ADMINISTRATIVE BURDEN: Terminological Demarcation and Practical Implications","authors":"Aleksandar S. Mojašević, L. Nikolić","doi":"10.22190/fulp2102083m","DOIUrl":"https://doi.org/10.22190/fulp2102083m","url":null,"abstract":"In this paper, the authors provide a precise terminological demarcation of the following behavioral concepts: “nudge”, “shove”, and “budge”. Based on these concepts and three defined criteria (freedom/coercion, internalities/externalities, and behavioral insights), the authors explain various behavioral public policies and their practical implications: 1) the behavioral public policy of libertarian-paternalistic orientation (the “nudge policy”); 2) the policy of coercive paternalism; and 3) the behavioral regulation of externalities. Then, the authors provide a terminological distinction between the concept of “sludge” and “nudge”, and discuss their potential misuses. Finally, based on the level of “frictions”, the authors distinguish between the concepts of “administrative burden” and “sludge”, as well as the types of public policies that are recommended for their reduction, particularly “sludge audits”. The conclusion is that all these public policies are very close, slightly different in terms of the subject matter of regulation and the intensity of encroachment on the freedoms of individuals, but that they all have a common root in behavioral insights.","PeriodicalId":237738,"journal":{"name":"Facta Universitatis, Series: Law and Politics","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125077647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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