Title
Postupak pred Međunarodnim centrom za rešavanje investiconih sporova (ICSID) kao funkcionalno apelacioni sistem
Creator
Stevanović, Kristina R. 1982-
Copyright date
2019
Object Links
Select license
Autorstvo-Nekomercijalno-Bez prerade 3.0 Srbija (CC BY-NC-ND 3.0)
License description
Dozvoljavate samo preuzimanje i distribuciju dela, ako/dok se pravilno naznačava ime autora, bez ikakvih promena dela i bez prava komercijalnog korišćenja dela. Ova licenca je najstroža CC licenca. Osnovni opis Licence: http://creativecommons.org/licenses/by-nc-nd/3.0/rs/deed.sr_LATN. Sadržaj ugovora u celini: http://creativecommons.org/licenses/by-nc-nd/3.0/rs/legalcode.sr-Latn
Language
Serbian
Cobiss-ID
Theses Type
Doktorska disertacija
description
Datum odbrane: 14.06.2019.
Other responsibilities
mentor
Ćirić, Aleksandar 1952-
komentor
Cvetković, Predrag 1970-
član komisije
Đorđević, Milena 1977-
član komisije
Zdravković, Uroš 1984-
Academic Expertise
Društveno-humanističke nauke
University
Univerzitet u Nišu
Faculty
Pravni fakultet
Group
Katedra za međunarodno-pravne nauke
Alternative title
International Centre for Settlement of Investment Disputes (ICSID) - assited dispute resolution procedure as a functional appealte system
Publisher
[К. R. Stevanović]
Format
332 lista
description
Biografija autora: list 332;
Bibliografija: listovi 321-331.
description
International trade law
Abstract (en)
The International Center for the Settlement of Investment Disputes
(ICSID) was created as a depoliticized forum for the effective
protection of investors’ rights. It stands as a synonym for the
transition to a qualitatively different type of individual rights’
protection in the international scene. ICSID is a self contained system
which consists of the entire necessary requirement for properly
functioning, with the unique enforcement of the awards regulations,
and a specific mechanism for the control of the awards within the
system. As specificum in international law in general, ICSID fosters
the concept of relative finality of the awards, which is reflected in
prescribing post-arbitration procedures. The particularity of the
system is reflected in the annulment procedure (Article 52 of the
ICSID Convention), which is observed as a mechanism against
"blind" enforcement. Through the development of ICSID practice,
although initially conceived as an exceptional legal remedy, the
annulment process began to gain the characteristics of the appeal
procedure. This trend is identified in the ad hoc committees’
assumption of extensive authority, and in the standard for the review
of the awards. This process is described as appeal on procedural basis.
Along with such development of procedure, faced with outcomes of
the disputes and the value of awarded compensations, the overall
climate in the international economic environment has led to the
questioning of the legitimacy of ICSID. Bearing in mind that the
annulment procedure has exceed the original constraints set by the
ICSID Convention, the dissertation aims at examining whether the
practice of ad hoc committees bears any relevance to legitimacy
crisis. The conducted research suggests that the legal nature of
investment disputes has evolved in a manner that places them in
realm of public law issues. This explains ICSID overgrowth of
classical commercial arbitrations to a system which entails
considering essential state interests, and in particular, sovereign
regulatory freedoms. Ad hoc committees are positioned as bodies
which assume the power to suggest the creation, as well as ways for
implementation of public policies of the States. This places ad hoc
committees as means for the indirect control of the States. Based on
the theoretical understanding of administrative law in the national
systems, its essential role is determined as the control of the
governing apparatus of the State. By comparison, ICSID is described
as the finest mechanism of global administrative law. This is how the
legal doctrine creates a conceptual framework for the work of ad hoc
committees, which, by functioning as a soft law instrument, renews
the meaning of the ICSID Convention and gives the legitimacy to the
changed authority of this Center. Theoretical conceptualization of the
work of the ad hoc committees imposes the essential question: is it
necessary to fix the functioning system that is still developing and
appears not to be broken? Starting from such an understanding, the
dissertation aims to show that the fact that ad hoc committees are
assuming the authority that goes beyond the strict limits of the ICSID
Convention, stands not as recognition of system imperfections, but
rather as a method for adapting to changed circumstances.
Authors Key words
ICSID, postupak za poništenje odluke, apelacioni postupak,
globlano upravno pravo
Authors Key words
ICSID, annulment procedure, appeal, Global Administrative Law
Classification
341.6:339.52](043.3)
Subject
339.52:341.6(043.3)
Subject
S 144
Type
Tekst
Abstract (en)
The International Center for the Settlement of Investment Disputes
(ICSID) was created as a depoliticized forum for the effective
protection of investors’ rights. It stands as a synonym for the
transition to a qualitatively different type of individual rights’
protection in the international scene. ICSID is a self contained system
which consists of the entire necessary requirement for properly
functioning, with the unique enforcement of the awards regulations,
and a specific mechanism for the control of the awards within the
system. As specificum in international law in general, ICSID fosters
the concept of relative finality of the awards, which is reflected in
prescribing post-arbitration procedures. The particularity of the
system is reflected in the annulment procedure (Article 52 of the
ICSID Convention), which is observed as a mechanism against
"blind" enforcement. Through the development of ICSID practice,
although initially conceived as an exceptional legal remedy, the
annulment process began to gain the characteristics of the appeal
procedure. This trend is identified in the ad hoc committees’
assumption of extensive authority, and in the standard for the review
of the awards. This process is described as appeal on procedural basis.
Along with such development of procedure, faced with outcomes of
the disputes and the value of awarded compensations, the overall
climate in the international economic environment has led to the
questioning of the legitimacy of ICSID. Bearing in mind that the
annulment procedure has exceed the original constraints set by the
ICSID Convention, the dissertation aims at examining whether the
practice of ad hoc committees bears any relevance to legitimacy
crisis. The conducted research suggests that the legal nature of
investment disputes has evolved in a manner that places them in
realm of public law issues. This explains ICSID overgrowth of
classical commercial arbitrations to a system which entails
considering essential state interests, and in particular, sovereign
regulatory freedoms. Ad hoc committees are positioned as bodies
which assume the power to suggest the creation, as well as ways for
implementation of public policies of the States. This places ad hoc
committees as means for the indirect control of the States. Based on
the theoretical understanding of administrative law in the national
systems, its essential role is determined as the control of the
governing apparatus of the State. By comparison, ICSID is described
as the finest mechanism of global administrative law. This is how the
legal doctrine creates a conceptual framework for the work of ad hoc
committees, which, by functioning as a soft law instrument, renews
the meaning of the ICSID Convention and gives the legitimacy to the
changed authority of this Center. Theoretical conceptualization of the
work of the ad hoc committees imposes the essential question: is it
necessary to fix the functioning system that is still developing and
appears not to be broken? Starting from such an understanding, the
dissertation aims to show that the fact that ad hoc committees are
assuming the authority that goes beyond the strict limits of the ICSID
Convention, stands not as recognition of system imperfections, but
rather as a method for adapting to changed circumstances.
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