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South East European Law Journal ISSN 857-89933 9 778578993000 UDC 32 (4-12) VOLUME 1 ∙ NUMBER 3 ∙ APRIL 2017 South East European Law Journal Volume 1 Number 3 April 2017 Publisher Technical Editor Centre for SEELS Centre for SEELS Bul. Goce Delcev, 9b 1000 Skopje Contact Editor in Chief Centre for SEELS Prof. Dr. Goran Koevski, Faculty of Law Bul. Goce Delcev 9B ”Iustinianus I”, Skopje 1000 Skopje Tel: ++389 2 31 25 177 Web: www.seelawschool.org Editorial Board E-mail: [email protected] Prof. Dr. Nada Dollani, Faculty of Law Tirana Prof. Dr. Petar Bačić, Faculty of Law Split Assist. Prof. Dr. Ivana Simonović, Faculty of Law Niš Assist. Prof. Dr. Tunjica Petrasević, Faculty of Law Osijek Assist. Prof. Dr. Svetislav Kostić, Faculty of Law Belgrade Assist. Prof. Dr. Romana Matanovac Vučković, Faculty of Law Zagreb Prof. Dr. Iza Razija Mešević Kordić, Faculty of Law Sarajevo Prof. Dr. Maja Čolaković, Faculty of Law Mostar Assist. Prof. Dr. Maša Alijević, Faculty of Law Zenica ISSN 857-89933 9 778578993000 Prof. Dr. Edita Čulinović Herc, Faculty of Law UDC 32 (4-12) Rijeka Prof. Dr. Vladimir Savkovic, Faculty of Law Podgorica Volume 1 Number 3 April 2017 Table of Contents INTRODUCTION by Editor in Chief ............ 3 INTELLECTUAL PROPERTY RIGHTS AS FOREIGN DIRECT INVESTMENTS IN THE TRANSITIONING COUNTRIES – THE MACEDONIAN EXAMPLE, Ana Pepeljugoska, Valentin Pepeljugoski………………………...5 PERCEPTION OF THE ICTY IN BOSNIA AND HERZEGOVINA - THE TRIBUNAL BETWEEN LAW AND POLITICS, Enis Omerović and Glorija Alić.................................................... 24 ALBANIAN CERTIFICATION OF SUCCESSION AND ITS APPROXIMATION TO EU REGULATION NO. 650/2012, Enkeleda Olldashi ......................................... 46 THE NEGOTIORUM GESTIO INSTITITUTE ACCORDINT TO ALBANIAN INTERNATIONAL PRIVATE LAW AND ROME II REGULATION, CONFLICT OF LAW RULE, Laura Vorpsi and XhonSkënderi ......................................... 61 THE IMPORTANCE OF TRADEMARKS AS VALUE ASSETS FOR COMPANIES’ DEVELOPMENT – MACEDONIAN AND COMPARATIVE PERSPECITVE, Darko Spasevski and Hristijan Koneski .................. 80 INTERPRETATION OF CONTRACTS, Amna Gagula and Velida Luković................ 99 Volume 1 Number 3 April 2017 24 EU Law days which will be held in the region within the member faculties of SEELS. INTRODUCTION The project also entails overall automatizing of the production of the SEE LJ which will be Dear Reader; acquired through the creation of a multi-level web site, and its opening to the legal We are glad to present you the third edition of practitioners of the SEELS region. We are our South East European Law Journal, the only confident that this will contribute to the quality regional journal in the SEE that is published in of the publication and will increase its visibility English Language and popularity. Thus the new editions of the SEE LJ which will be published in 2018 will It is our firm belief that such publications are a have a new and we hope, improved format living matter and as such need to develop, which will attract more contributors, transform and be improved constantly. In the researchers, authors and readers to our side. past period we have gathered sufficient information on the processes, capacities, Having said that we are glad to present you this strengths and weaknesses of our edition which edition of the SEE LJ which is the last to be gave us the incentive to undergo the process of published in this format. Additionally it is also its transformation. In this process we have an edition that the SEELS network is analysed the unique capacity of the editions to publishing individually, as the previous two provide a specific insight in the overall regional editions were financially supported by the GIZ context within both, the EU and regional Open Regional Fund for South East Europe – legislations, its specific capacity to unify and Legal Reform Office. initiate collaboration among young academics from the region, as well as its specific format, This edition is keeping the old structure and lack of the practitioner’s perspective, format, thus publishing the papers of young increasing its visibility etc. academics from several SEE countries. As it was before, the issue encloses papers sourcing In that sense the Editorial Board of the Journal from various legal disciplines. The new SEE LJ as well as the team from the Centre for SEELS will be an e-format edition which will be had thus joined their forces and built on the opened for legal practitioners and academics original idea of the SEE LJ, developing it alike and will be published on the newly further which had in the end resulted with a constructed SEE Law Journal web site. project proposal for the Erasmus + Jean Monnet Associations call that was submitted in early At the end of this valuable process of 2016. We are now glad to inform you that the transformation it only remains that we express project was awarded officially in September our gratitude to all of our collaborators who 2016. made these editions possible, to all authors who had given their contribution, and finally to our The project will entail production of four readers for staying with us in these past years. editions of SEE LJ in the upcoming period and We are dedicated to produce a publication Volume 1 Number 3 April 2017 which will realize its full potential and wish that you will stay with us on this journey. Finally we hope that you will find this issue interesting and an insightful read. It is our firm belief that our efforts to improve our publication will keep our audience and that we will be able to initiate dynamic exchanges with all interested parties in the period to come. Sincerely; Prof. Dr. Goran Koevski Faculty of Law “Iustinianus I” Skopje Editor in Chief Volume 1 Number 3 April 2017 INTELLECTUAL PROPERTY RIGHTS ABSTRACT: AS FOREIGN DIRECT INVESTMENTS IN THE TRANSITIONING COUNTRIES – It is well understood that economic THE MACEDONIAN EXAMPLE growth results either from the accumulation of UDC 338.121(100-773):347.77(497.7) factors of production or from the improvements Authors Ana Pepeljugoska, LL.M.1 in technology or both. The establishment of Prof. Valentin Pepeljugoski2, Ph.D., Attorney at Law foreign direct investments is particularly 1 Ana Pepeljugoska, LL.M., PhD 4655-59-6); Intellectual property law (Право на Candidate University Ss. Cyril and Methodius интелектуална сопственост), Praven Fakultet Faculty of Law “Iustinianus I” Skopje, Attorney at Justinijan Prviv - Skopje, Skopje 2012, together law“Certain Data Privacy Issues in the Cloud with Jadranka Dabovikj Anastasovska (ISBN 9989- Computing Environment from a Macedonian 759-60-Х); Agreements of the autonomous trade Perspective – A Comparative Analysis of practice (Договори на автономната трговска Legislation”, ZEuS vol. 1/2016, Nomos 2016; “How практика), Praven Fakultet Justinijan Prvi- Skopje, to protect Trade Secrets: Fitting the legal framework Skopje 2012, together with Jadranka Dabovikj of the intellectual property law”, SEE Cluster of Anastasovska, Goran Koevski, Nenad Gavrilovikj Excellence Series of Papers, vol. 1, 2015– Peer (ISBN 978-608-4655-14-5), Intellectual Property Reviewed Article; „Arbitrability of intellectual Law: International legal sources, SS. Cyril and property disputes”, together with Valentin Methodius University in Skopje Iustinianus I Pepeljugoski, PhD, Kopaonik school of natural Faculty of Law (144582-TEMPUS-2009-MK- rights 28th edition, December 2015; “Jurisdictional JPCR), Skopje 2012 (ISBN 978-608-4655-20-6), issues, conflict of laws or alternative dispute ed. Mirjana Polenk-Akimovska, Patent Law resolution of disputes that related to the (Патентно право), Macedonian lawyers infringement of the intellectual property rights on association, Skopje 2011 (ISBN 978-9989-2523-6- the social media platforms”, Iustinianus I Law 5). Review vol. 11, July 2015, Skopje – Peer Reviewed Author and Co-author of more than 40 scientific and Article; Protection of intellectual property rights on academic papers published in Macedonia and abroad. social media, CEEPE Skopje, Skopje 2013- Peer Reviewed Book (ISBN 978-9989-2983-302) Co-Author of Intellectual Property Manuals published by the State office for Industrial property 2 Professor Valentin Pepeljugoski, Ph.D., Attorney in the year 2013 (ISBN 978-608-4628-16-3; at law, Peer Reviewed Text Books: Copyright Law ISBN978-608-4628-12-5) 2nd Edition (Авторско Право), Praven Fakultet Justinijan Prvi- Skopje, Skopje 2015, together with Jadranka Dabovikj Anastasovska (ISBN 978-608- Volume 1 Number 3 April 2017 important because is both a source of capital and provider of knowledge. To encourage the generation of a new knowledge dissemination, the developing countries are making intersection between the international investment law and the intellectual property protection. Underlying this, many investment treaties include the intellectual property among the enumerated examples that constitute “investments”. Still, the intellectual property rights as foreign direct investments remain one of the most controversial issues of the investment law. Due consideration should always be made for the public interest of the Host State while balancing with the interests of the investor in reaping the potential of its investment. Consequently, despite their significant role, the intellectual property rights as foreign direct investments are not the only factor influencing the investment rate of the transitioning countries. Following the trends in the region, the Republic of Macedonia also became part of the “race to
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