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The requirements put before the courts by sources that regulate human rights significantly affect functioning of the mechanism of Private International Law. This statement particularly applies to situations in which it is necessary to give effect to the change of personal and family status acquired abroad. The paper refers to the problem of recognition of same-sex marriages concluded abroad. It analyzes the most important decisions of the European Court of Human Rights regarding the obligation of the member states of the Council of Europe to provide legal protection and recognition to same-sex unions, in accordance with Article 8 of the European Convention on Human Rights (protection of private and family life). The analysis shows that today it is undoubtedly clear that these states have a positive obligation to establish an adequate legal framework that would allow partners in a same-sex union to enjoy certain subjective rights. The obligation in question also extends to same-sex marriages concluded abroad and, when it comes to Serbia, requires immediate legislative intervention. [ABSTRACT FROM AUTHOR]

Invention and wide-spread use of the internet pose particular challenges for Private International Law. Ubiquitous nature of content placed online, the fact that internet-users are able to create the content themselves and the absence of any meaningful geographic connection between transactions conducted online and a territory of any given country are factors which are, on the one hand, increasing the number of cases with cross-border implications while, as the same time, rendering the use of traditional rules of jurisdiction and choice of law increasingly difficult. This is particularly the case with cross-border infringements of personality rights via the internet. The paper discusses the issue of jurisdiction for this particular category of internet-torts. Based on the analysis of the case law created by the Court of Justice of the European Union and the practice of courts in certain national jurisdictions, the author concludes that a reasonable and purposeful interpretation of the notion “place of damage” as a criterion of special jurisdiction for torts used in Article 53(1) of the Serbian Private International Law Code, entails that for the acceptance of jurisdiction by Serbian courts it is not enough that the relevant content is accessible from the territory of Serbia. It is also necessary that a victim’s habitual residence or main place of business is in Serbia. Such interpretation allows Serbian courts to accept jurisdiction in circumstances in which there is a real and meaningful connection of a dispute with Serbia, provides the plaintiff with efficient legal protection of his rights and guarantees the defendant a reasonable opportunity to foresee a competent forum. [ABSTRACT FROM AUTHOR]

In past several years many states have started a reform of their bilateral investment treaties (BITs). The idea behind this effort is to terminate altogether or to replace the existing BITs, often perceived as unbalanced instruments, focused solely on the protection of investors and containing broad and open language, with new treaties. Serbia is, at the moment, not engaged in such process. The paper offers an overview of the BITs currently in force in Serbia. It also discusses different options for inevitable reform of Serbian BITs, bearing in mind legal, economic and political implications of three alternatives: denunciation (unilateral termination) of the existing BITs, termination by consent and their replacement with new treaties [ABSTRACT FROM AUTHOR]

Starting from 1 February 2021 Serbia is under an obligation to apply the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. This is a new source introducing significant changes in Serbian private international law. Apart from provisions on administrative cooperation between contracting states’ central authorities with an aim to simply and accelerate recovery of maintenance in international context, the Convention contains detailed provisions on recognition and enforcement of maintenance decisions, reasons for its refusal and, which is a particular novelty in comparison to previous international convention, procedural rules that a court of another competent body of the requested state should apply while deciding on the issue. The paper discusses the main features of the recognition and enforcement mechanism established by the Convention and, in particular, certain issues that Serbian courts might face as a result of the interaction between provisions of the Convention and Serbian law. [ABSTRACT FROM AUTHOR]

International Centre for Settlement of Investment Disputes (Centre or ICSID) was established for resolving disputes between foreign investors and host States. This is why jurisdiction ratione personae of the Centre depends crucially on who can be considered as a foreign investor, i.e. which persons have right of standing to initiate arbitration based on the Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States (the Convention). When a claimant is a juridical person, one of the issues causing a debate in arbitral practice concerns the significance of control over that entity- to what extant is jurisdiction of an ICSID tribunal affected by the fact that the entity is under direct or indirect control of the host State's nationals. The paper examines the problem with regards two groups of cases that the Convention regulates separately. The first group concerns cases in which the role of a claimant belongs to juridical persons nominally holding the nationality of other Contracting States of the Convention. The other category relates to the cases of claims submitted by local entities controlled by foreign investors against their own State. [ABSTRACT FROM AUTHOR]

International treaties for the protection and encouragement of foreign investments represent kind of a bargain by which a host State of the investment agrees to provide the investor of the other contracting party with particular substantive-law protection, motivated by a desire to attract foreign capital. However, the corporate structure of the investment could be organized in a way that allows natural or legal persons to whom this kind of protection is not offered to „hide” behind the investment. Denial of Benefits Clause is an instrument that is intended to enable the host State to deny the protection offered by a Treaty to such investments. The paper discusses the application of the Denial of Benefits Clause by arbitral tribunals, with particular emphasis on procedural requirements which so far proved to be a significant obstacle for the efficient use of the clause in investment disputes. [ABSTRACT FROM AUTHOR]

A considerable number of bilateral treaties on promotion and protection of investments (Bilateral Investment Treaties or BITs) contain a definition of an investment requiring it to be made in accordance with “laws and regulations” of the host state. Even when the obligation of the investor to act in accordance with the host state’s law is not explicitly included in the text of the relevant treaty, investment tribunals tend to observe this requirement as a precondition for their jurisdiction. States which are confronted with investors’ claims often use this plea of illegality in order to challenge the arbitral tribunal’s jurisdiction in an investment dispute, i.e. to challenge the existence of their consent to arbitrate disputes about investments made illegally. The objection is, however, rarely successful. This is a consequence of a way in which arbitral tribunals interpret the scope of the investor’s obligation. Arbitral awards demonstrate that the success of such defense depends on variety of factors such as: the relevance of the host state’s legislation at issue, the intensity and timing of the breach and the presence of the investor’s intent. On the other hand, the goal of this paper is to show that the national law of the host state can play a different role. The law of the host state determines conditions for the lawful acquisition as well as the content of the property right deemed as the protected investment. If an investor alleges the breach of the property right which, due to his actions, could not be created under the applicable national law, there is no protected investment, i.e. the arbitral tribunal lacks jurisdiction ratione materie. [ABSTRACT FROM AUTHOR]

Business transaction which represents a foreign investment is today most commonly regulated by three different layers of legal rules: provisions of an investment contract, rules of international law (treaties and rules of customary international law) and the legislation of the Host State. In the event of a dispute arising out of an investment, a tribunal working under the auspices of ICSID must determine the law applicable to the merits through the application of article 42(1) of the Convention. Although it is clear that one cannot fully comprehend all legal aspects of an investment dispute without the context of the Host State’s national legislation, there is a strong tendency in arbitral disputes of neglecting such municipal legal rules in favor of international law. The paper concentrates on the evolution in interpretations of the choice of law provision from the Convention in the practice of ICSID tribunals. It shows the way in which those interpretations have changed during the course of time, leading to the broadening of arbitrators' freedom to decide on the applicable law. This trend resulted in constant widening of the scope of application of international law, contrary to the text of article 42(1) and intentions of the Convention's makers. As a consequence, there is today almost no way in which a state could shield itself from the liability for the breach of the investor's rights by invoking the fact that it acted in accordance with domestic legislation. [ABSTRACT FROM AUTHOR]

Provisions on obligation of a host state to act transparently towards foreign investors increasingly often find their way into bilateral investment treaties. Their goal is to provide the investor with all information concerning the investment's legal framework and which he needs in order to make an informed decision with regard to his investment. Certain provisions on transparency are so broad in their scope that they demand from the host state to provide an investor with a possibility to participate in the process of adoption of a state measure that could affect his interest. On the other hand, in arbitral practice the obligation to act transparently is traditionally seen as one of the elements of the fair and equitable treatment standard, although the practice has not so far provided a clear answer as to what is the exact role of this element and what is its relationship with other elements of the standard. The paper contains an analysis of transparency provisions from bilateral investment treaties concluded by the Republic of Serbia. The second part of the paper is dedicated to analysis of arbitral awards in which tribunals considered the transparency obligation as a part of the fair and equitable treatment standard. [ABSTRACT FROM AUTHOR]

A legal expropriation of a foreign investment without exception includes an obligation of the host state to pay the investor an appropriate compensation for the taking. Bilateral treaties for protection and encouragement of investments which usually serve as a normative basis for arbitration of expropriation disputes contain provisions instructing contracting states to provide “adequate”, “just” compensation or to pay the compensation in “full” or “genuine” value of the expropriated investment etc. However, the sole existence of the standard for payment of compensation is not by itself enough for establishing the precise sum of compensation in particular cases. This purpose is served by mathematical methods of calculation employed used in judicial and arbitral practice. The paper contains an overview of the most important methods for calculation in practice: the market value method, the discounted cash flow method and the book value method. It also identifies the differences between situations in which different methods are used and explains how the nature of an investment and circumstances of particular case affect the choice of a particular method by the arbitral tribunal. [ABSTRACT FROM AUTHOR]

This article represents the overview of certain new trends in international environmental protection. The results of the research are organized in several sections: international legal sources (international agreements, international legal principles, soft law), human rights (Aarhus Convention, human rights in relation to climate change, right to water), procedural mechanisms available for the protection of environment (ICJ, CJEU, international procedures available to individuals, international investment arbitration, national courts). The article focuses not only on new developments which illustrate innovative approaches to environmental protection but also detects a number of problems in relation to their effective implementation and enforcement. [ABSTRACT FROM AUTHOR]