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The aim of this paper is to explore the specifics of the Germ an approach in resolving legal issues that are raised regarding general terms and conditions. Applying legal-dogmatic, comparative and legal-historical methods, the paper examines the characteristics and basic directions of development of Germ an legal theory and legislation regarding general terms and conditions. The basics of understanding legal doctrine on the character and legal nature of general terms and conditions are laid out chronologically according to the time of creation and period of dominant influence. The paper highlights the extent to which the legal-theoretic and legal-dogmatic development of German law regarding general terms affected other German-speaking countries, primarily Austria and Switzerland. Legal theoretic development in German law ranged from the strong dominance of normative theory to its strong critics that led to the empowerment of contractual theory. Norm ative legal development is characterized by the principle 'from a special law to the general part of the civil code'. The review of the relevant BGB paragraphs shows that when amending paragraphs of the BGB, the legal concept, which was shaped through German theory and legislation in a coherent whole and in a special law on regulating the general terms and conditions law, was preserved. The provisions of that law were essentially taken into the German Civil Code in 2002 as part of the reform of German contract law. This law not only affected the development of other national legal systems, but also had some impact on the development of consumer law at the European Union level. Namely, some of its provisions were used as the basis for one of the most important directives concerning unfair contractual provisions. The paper also points to the current mechanisms for controlling general terms and conditions through the control of the validity of inclusion (incorporation), the black and grey list of contractual provisions and the general clause.

The paper starts from adherence to a contract that is functionally understood as consent of the will, although it has certain specificities, which is why it is defined in all legal systems as a special legal regime that essentially applies to all forms of contract prepared by one party, regardless of the existing terminological and conceptual differences. French contract law, as otherwise very influential in the world and with the most influential civil codification ever, has influenced many legal systems, including Serbian. The impact is primarily reflected in the term adhesion contracts, which today, both in that original form and their translated versions - contracts upon accession and contracts by consent - are still connected with the French law. Theoretical postulates of this concept in France and its adoption, i.e. reception in domestic civil law science, as well as legal regime in amended French Civil Code are explored. The focus is on the extended authority of the court to intervene in private contractual relations, as well as the current tendencies of introducing rules primarily designed for consumer contracts and consumer protection into the general contract law regime, i.e. the process of adopting them as general rules of contract law.

This paper shows the diverging tendencies in the understanding of the arbitration clause contained in the general terms conditions of business transactions (GT&CBT) in (international) commercial law and consumer protection law. The results show that inverse logic is currently used regarding the issue of bringing attention to the arbitration clause contained in a GT&CBT and the necessity for such an arbitration agreement to be contained in a separate and personally signed document. International commercial arbitration, encompassing both legal dogma and arbitration and court praxis, has shown a tendency towards a more liberal and flexible understanding of the written form in the past several decades, in terms of the validity of the arbitration clause contained in a GT&CBT referred to in an underlying substantive contract. By contrast, in consumer protection law, there is a tendency for the arbitration clause contained in a GT&CBT, which has not been brought to attention, to be considered a null and void provision. Namely, it is required for the arbitration clause to be contained in a separate document signed by both parties. This points to the conclusion that special attention should be paid to consumer disputes that are to be resolved by arbitration, while court and arbitration praxis in international commercial disputes lately records cases in which the court explicitly took the opposite position. Traders' claims stating that they were not aware that the GT&CBT contained an arbitration clause and that no attention was drawn to it are considered unfounded by the courts. Namely, the application of both GT&CBTs and arbitration in international trade are, nowadays, considered ordinary.

Having the rules of contract interpretation as a starting point, in this article the author considers two indisputable conditions for the application of the contra proferentem rule: (1) ambiguity of the provision, as an issue separate from the fact that the provision has become disputable among the contractors; and (2) the fact that the contract was unilaterally proposed or independently drafted by one contracting party. The article then focuses on the following contentious issues: (a) whether the contra proferentem rule is necessarily related to the protection of the weaker party or it is applicable regardless of the power disproportion between the contracting parties; (b) whether conducting negotiations and the existence of a reasonable possibility for the other party to become acquainted with the general conditions before the contract conclusion preclude the application of this rule; (c) whether the contra proferentem rule should be applied restrictively or extensively and without special conditions in contemporary law; and (d) whether this rule is a general and universal legal principle or applicable only when expressly provided by the relevant national legislation. If answers to these questions can be graded, then they could be taken into account proportionally when measuring the scope of application of the contra proferentem rule. In that situation, it could be asserted that the greater the scope, intensity, and effectiveness of the negotiations that preceded the contract conclusion, the less the justification for the application of this rule of interpretation, and vice versa. On the other hand, starting from the inequality of the parties, it can be asserted that the greater the inequality between the parties in terms of bargaining power, experience, genuine inequality, etc., the greater the need to apply this principle. The author emphasizes that the contra proferentem rule is used for the interpretation of adhesion contracts. Therefore, its scope should be determined in each particular case, taking into account the actual influence of the other party on the choice of provisions governing the contractual relationship, and bearing in mind that between general conditions and adhesion contracts a sign of equality does not necessarily exist. Consequently, it seems that not only exclusive but also proportional application in determining this rule's scope in a specific situation is possible. The author also points out that the scope of its application may depend on the determination of the goal and value one protects, whereby the determination to protect the weaker party or to protect the conscientious and moral conduct of the party and the prohibition of abuse, can lead to different results. Accordingly, the author argues that although the contra proferentem rule is necessary to prevent potential abuses of the contracting party that independently creates the general conditions of the contract, this rule should not be abused by the other contracting party either. More precisely, it should not be used as an instrument in situations when, during the contract implementation phase, it becomes evident that the fulfillment of the other party's contract obligation has subsequently become difficult or costly. Respecting the postvention and preventative role it has, the contra proferentem rule is one of the subsidiary and special rules of interpretation. The rule is to be applied in compliance with general and other special rules of interpretation, primarily seeking the common intention of the parties. The application of the contra proferentem is conditioned and limited, and justified only when it is founded and appropriate. The extent of its scope in practice should depend on the circumstances of each particular case, while at the same time taking into account the basic principles of the contract law.

The article analyses forms of direct democracy from its historical forms, in Ancient Greece, to the modern ones, in Switzerland and the USA. Pointing towards the modern flaws of representative democracy, which dominates the present world, the author explores the forms of citizen participation - from participation to influence, which assists the overcoming of the democratic deficit in practice. Besides the traditional (classical) ones, the analysis also focuses on the innovative mechanisms, from informal to formal ones, from individual to collective mechanisms. The focus is on the procedures of direct citizen participation such as: elections, referendum (with its modalities, plebiscite and popular veto), citizens' initiatives, the right of legislative initiative, public meetings, as well as seeking new constructive solutions which enable the citizens not only to express their opinions through selecting the option for or against, but to actively participate and express their own opinions, positions, experiences and arguments - to participate in public deliberation. These are: public debate, public hearing, public consultations and public discussions, round tables and public presence in the form of mini-audiences, public opinion polls and participation in surveys, cooperation of state bodies with civil society organisations, public call for submission of proposals, remarks and petitions, public-private dialogue, focus groups, citizen panels, citizen conferences, citizens' advisory committees, town hall meetings, citizens juries, consensus conferences, the world cafe. In particular, the article points out that e-participation is nowadays utilised more often and gains significance, since it enables citizens to submit their proposals and remarks electronically, in the form of discussion and interaction via social networks and on-line dialogue platforms. It points towards the positive effects and advantages of direct involvement of citizens in the process of decision making and policy making, through contributions to correcting, stabilizing and consolidating the modern representative democracy. Considering the forms of direct citizen participation in the Serbian society, the next part of the article focuses on the public debate and analyses its legal framework in Serbia and the region. With an analysis of public hearings, the article confirms the author's initial hypothesis that public hearing is not synonymous to or a form of public debate (as often understood in the Serbian public). The author identified 13 original criteria of delineation by which these two institutes differ. Indicating the possibilities of application of other innovative mechanisms of citizen participation which have been proven in the practice of other countries, the author provides concrete recommendations and three possible legal routes for the improvement of public deliberation and concludes that by the power of an argumentative public deliberation and the participation of a larger number of citizens and all sectors of the society, as well as the involvement of their arguments in final texts of laws and other regulations, the present partocracy could be led to a rule of reason, i.e. that the state of political parties is transformed into a state of reason.

The article first determines a definition of public hearing and the multiple benefits of the application of this institute in comparative parliamentary law. Following an analysis of different modalities of public hearings in contemporary parliamentary practice and procedures for organisation and implementation of public hearings in three phases, the author suggests a classification of three basic types of public hearings: (1) legislative public hearings, which can also be labelled as consultative or informative, (2) control (oversight) hearings, and (3) investigative. After that, possibilities for realisation of the three mentioned types within the domestic legal framework are analysed. This is followed by an analysis and determination of the importance of public hearings, in particular for the national parliament, local self-government assemblies and civil society organisations. In the second part, the author analyses the development of public hearings in Serbia, primarily on the national level, i.e. the legal framework and previous practice of committees of the National Assembly in organisation and realisation of public hearings. Afterwards the focus is on transferring the good practice from the national to the local level and the first public hearings held in town and municipal assemblies in Serbia. The author notices that on both levels of government public hearings are initially applied in the same manner - first on the factual plan (in the form of so called thematic committee sessions) and only afterwards are they legally regulated. After conclusions, the author offers recommendations for further development, i.e. improvement of public hearings on the national and local level.

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Copyright of Legal Records / Pravni Zapisi is the property of Union University Law School, Belgrade and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Legal Records / Pravni Zapisi is the property of Union University Law School, Belgrade and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)