Balkan Yearbook of European and International Law 2019

The first issue of the Balkan Yearbook of European and International Law (BYEIL) focuses on international commercial and investment arbitration as one of the fastest developing fields of law in Southeast Europe. Covering a range of topics, the contributions analyze transparency and confidentiality in international commercial and investment arbitration in national, EU and international contexts. In addition, it compares the commercial arbitration laws and rules in Bosnia and Herzegovina with the international developments in this area. The papers published in the permanent sections on European Law and International Law explore contemporary challenges in public and private law disciplines, offering new perspectives on old concepts. Editorial Contents Editors and Contributors One Size Fits All? Transparency in Investment and Commercial Arbitration 1 Introduction 2 Transparency in International Economic Law 3 Transparency in Investment Arbitration 3.1 Public Law Dimensions in Investment Arbitration 3.1.1 Transparency Deduced from Democratic Legitimacy 3.1.2 Transparency Deduced from the Rule of Law 3.2 Recent Developments Towards Transparency in Investment Arbitration 3.3 Interim Conclusions 4 Transparency or Confidentiality in International Commercial Arbitration 4.1 Party Autonomy as the Backbone of International Commercial Arbitration 4.1.1 Choosing Confidentiality for Arbitral Proceedings 4.1.2 Choosing Arbitration Rules: Default Option for Confidentiality 4.1.3 No Confidentiality Provisions: Is Confidentiality Implied? 4.2 Developments in Transparency: The Retreat of Party Autonomy? 4.3 Party Autonomy Far from Being an Absolute Right: Balancing Other Interests 4.4 Interim Conclusions 5 Conclusion: Can We Transfer Developments in Transparency from Investment Arbitration to International Commercial Arbitration? References Cross-Border Enforcement of Mediated Settlement Agreements and Potential Impact on the Practice of International Arbitration 1 Introduction: The View from Singapore 2 Key International Dispute Resolution Trends Impacting International Arbitration 2.1 Calls for Greater Transparency 2.2 Third-Party Funding 2.3 Regional Shifts 2.4 International Commercial Courts 3 Advent of the Singapore Convention on Mediation 3.1 Origin and Purpose 3.2 Scope 3.3 Enforcement 4 Predictions and Impact on International Arbitration 4.1 Taking the Best, Leaving the Rest 4.2 Increased Access to Justice for MSMEs 4.3 More Choice for IDR Users 5 Conclusion References Third-Party Funding in Arbitration: A Case for Mandatory Disclosure? 1 Third-Party Funding as a Typical Scenario Triggering Requests for Disclosure 2 Shall a Party Be Under a Duty to Disclose Third-Party Funding? 2.1 Pros 2.1.1 Important Element When Deciding on Security for Costs 2.1.2 Impartiality and Independence of Arbitrators Are at Risk Without Mandatory Disclosure 2.1.2.1 Disclosure by Arbitrators 2.1.2.2 Disclosure by Party or Counsel 2.1.3 Sanctions for Non-disclosure 2.2 Cons 2.2.1 Disclosure Duties Are Unnecessary 2.2.2 Disclosure Duties are Impractical 2.2.3 No Possibility to Directly Force A Party to Disclose 2.2.4 Protection of Sensitive Information 3 Discussion and Conclusion References Arbitrability of Shareholder Disputes in Bosnian Law 1 Introduction 2 Legal Boundaries on the Control of the Legality of Shareholders ́ Decisions 3 Arbitration vs. Bosnian Civil Courts 4 Issue of Arbitrability in Bosnian Law 5 Law on Companies: Ius strictum or Ius dispositivum? 6 How to Negotiate Arbitration Clauses 7 Participation of Shareholders in Arbitration Proceeding 8 Modern Tendencies 9 Conclusion References Intra-EU Arbitral Awards After Achmea: Recognition and Enforcement Within the European Union Under the New York Convention 1 Introduction 2 Increasing Interplay Between the Intra-EU BITs and the EU Legal Order 2.1 Brief History of the Intra-EU BITs 2.2 Investment Arbitration Cases Involving the Question of Compatibility of Intra-EU BITs with EU Law Before Achmea 3 Does the Achmea Ruling Really Affect Other Intra-EU Arbitral Awards? 3.1 The Possible Interpretation or Application of EU Law by the Arbitral Tribunal 3.2 Authority to Make Preliminary References to the CJEU Under Article 267 TFEU 3.3 Judicial Review of Intra-EU Arbitral Awards by a Court of a Member State 4 Recognition and Enforcement of Intra-EU Arbitral Awards After Achmea 4.1 Invalidity of the Arbitration Agreement 4.2 Violation of Public Policy 5 Conclusion References Granting and Enforcing Interim Measures in International Commercial Arbitration in Bosnia and Herzegovina 1 Introduction 2 Reasons and Forms of Interim Measures in International Commercial Arbitration 3 Enforcement of Interim Measures Ordered by the Arbitral Tribunal 3.1 General Overview 3.2 Enforcement of Interim Measures in Slovenia, Serbia and Croatia 3.3 Enforcement of Interim Measures in Bosnia and Herzegovina 4 Granting Interim Measures by State Courts in Support of Arbitration 4.1 General Overview 4.2 Interim Measures in Slovenia, Serbia and Croatia 4.3 Interim Measures in Bosnia and Herzegovina 4.3.1 General Overview 4.3.2 Jurisdiction of the State Courts to Order Interim Measures in Support of Arbitration 5 Conclusion References EU Directive on Unfair Trading Practices in Business-to-Business Relationships in the Agricultural and Food Supply Chain: Dipp... 1 Introduction 2 Background 3 Economic Agents Covered by the UTP Directive (ratione personae) 4 Scope rationae materiae of the UTP Directive 5 Public Enforcement Institutions and Proceedings 6 Conclusion References The Effectiveness of Judicial Enforcement of the EU Consumer Protection Law 1 Introduction 2 Effective Enforcement of the EU Consumer Protection Law 3 Judicial Protection vs. Alternative Dispute Resolution (ADR) 4 The Role of MS ́ Courts in the Application of the EU Consumer Protection Law 4.1 Principles of Effectiveness and Equivalence in the EU Consumer Protection Law 4.2 Ex officio Application of the EU Consumer Protection Law 5 Concluding Remarks References The Democratic Deficit of the EU: Two Schools Under One Roof 1 The Theoretical Debate 2 Democratic Deficit School 2.1 The Institutional Aspect of the Democratic Deficit 2.1.1 Democratic Deficit Is the Result of sui generis Institutional Architecture 2.1.2 Democratic Deficit Is the Result of Present Technocracy 2.2 The Socio-Psychological Aspect of the Democratic Deficit 2.3 The Concept of a Standard Version 3 The Non-Conformist School 3.1 The EU as an International Organization 3.2 The EU as a Regulatory Agency 3.3 Final Touches 4 Conclusion References Some Private International Law Aspects of European Economic Migration 1 Introduction 2 Economic Migration in the European Union 3 Interaction Between Private International Law and Migration Law 4 Private International Law Instruments Regulating the Status of Migrant Workers in the EU 4.1 Recognition of Foreign Public Documents/Court Decisions with the Function of Regulating the Status of Migrant Workers in t... 4.2 International Jurisdiction Rules and the Law Applicable to Individual Employment Contracts in relation to European Economi... 5 Concluding Remarks References