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Treaty Application in Kosovo Through Rules of Succession and As Domestic Law: the Example of the Cisg

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Treaty Application in Kosovo Through Rules of Succession and As Domestic Law: the Example of the Cisg TREATY APPLICATION IN KOSOVO THROUGH RULES OF SUCCESSION AND AS DOMESTIC LAW: THE EXAMPLE OF THE CISG by Vjosa Osmani-Sadriu, LL.M. BA of Law, University of Prishtina, Faculty of Law, 2004 LL.M., University of Pittsburgh, School of Law, 2005 Submitted to the Graduate Faculty of The University of Pittsburgh School of Law in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Pittsburgh 2015 UNIVERSITY OF PITTSBURGH SCHOOL OF LAW This dissertation was presented by Vjosa Osmani-Sadriu, LL.M. It was defended on March 10, 2015 and approved by Ronald A. Brand, Professor, School of Law, University of Pittsburgh Franco Ferrari, Professor, School of Law, New York University Kenneth Lehn, Professor, Katz Graduate School of Business, University of Pittsburgh Dissertation Advisor: Harry M. Flechtner, School of Law, University of Pittsburgh ii Copyright © by Vjosa Osmani-Sadriu 2015 iii TREATY APPLICATION IN KOSOVO THROUGH RULES OF SUCCESSION AND AS DOMESTIC LAW: THE EXAMPLE OF THE CISG Vjosa Osmani-Sadriu, S.J.D. University of Pittsburgh, 2015 ABSTRACT This dissertation discusses the legal status of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) in the Republic of Kosovo (“Kosovo”). It provides information on the application of the CISG in Kosovo from 1989, when Kosovo was still part of Yugoslavia, to date. Uncertainties characterizing the application of this international treaty in Kosovo are both substantial and unique. The resulting circumstances and challenges are reviewed in this dissertation, providing information regarding the current status of the CISG in Kosovo (Section 2), its use both as domestic law (Sections 1.2.2, 1.2.3, 2.2 and 2.3) and as an international treaty (Sections 1.2.1 and 2.1), the efforts to make the Convention applicable through the principle of succession of treaties (Sections 2.1.1, 2.1.2 and 2.1.3), and the alternative methods of application that have been adopted through Kosovo’s domestic law (Sections 2.2 and 2.3). iv TABLE OF CONTENTS ABSTRACT ......................................................................................................................................... iv PREFACE ............................................................................................................................................ ix INTRODUCTION .................................................................................................................................1 A BRIEF OVERVIEW OF KOSOVO’S LEGAL SYSTEM .......................................................4 A BRIEF OVERVIEW OF KOSOVO’S CONTRACT LAW ......................................................7 CHAPTER 1: APPLICABILITY OF THE CISG IN KOSOVO FROM 1988 TO 2008 ......................9 1.1 APPLICABILITY OF THE CISG WHILE KOSOVO WAS A PART OF YUGOSLAVIA ..................................................................................................................10 1.2 APPLICABILITY OF THE CISG WHILE KOSOVO WAS ADMINISTERED BY THE UNITED NATIONS (1999-2008) .......................................................................11 1.2.1 Application of the CISG as an international treaty during the UNMIK administration ..........................................................................................................12 1.2.2 Application of the CISG as domestic law during the UNMIK administration ..........................................................................................................13 1.2.3 Differences between UNMIK Regulation 2000/68 and the CISG ..........................16 CHAPTER 2: APPLICABILITY OF THE CISG AFTER THE DECLARATION OF INDEPENDENCE OF KOSOVO ...............................................................................................21 2.1 POST-INDEPENDENCE APPLICABILITY OF THE CISG AS AN INTERNATIONAL TREATY ...........................................................................................22 2.1.1 Does the CISG apply in Kosovo as a matter of succession? ..................................24 2.1.1.1 The notion of succession ..........................................................................24 2.1.1.2 Automatic Succession ...............................................................................26 2.1.1.3 Continuity principle vs. clean-slate principle ...........................................29 2.1.2 Automatic succession or succession upon notice....................................................32 2.1.2.1 Notice of succession: a legal or bureaucratic requirement? .....................35 2.1.2.2 The practice of succession to the CISG ....................................................40 2.1.3 The filing of notification of succession by Kosovo ................................................56 v 2.1.3.1 The practice of the UN Secretary General as treaty depository ...............59 2.1.3.2 Application of UN practice to the case of Kosovo ...................................67 2.2 APPLICABILITY OF THE CISG THROUGH KOSOVO’S DOMESTIC LAW .............74 2.2.1 Option 1: Adoption of the CISG through a provision in the Law on Obligations ..............................................................................................................75 2.2.2 Option 2: Adoption of the CISG through the incorporation of its entire text in the Law on Obligations ................................................................................76 2.2.3 Option 3: Reaffirming that Kosovo is already a party to the CISG by way of treaty succession .................................................................................................79 2.2.4 Option 4: Do nothing: Simply apply the CISG assuming that, according to the continuity principle, it continues to apply in Kosovo ...................................79 2.3 THE CISG IN THE NEW LAW ON OBLIGATIONS OF 2012 .......................................80 2.3.1 Adoption in the domestic law as an alternative way to ensuring the application of the CISG ...........................................................................................80 2.3.2 Advantages of the language adopted in the new Law on Obligations ....................83 2.3.3 Potential problems with the application of the new Law on Obligations ...............84 2.3.3.1 Challenges from interpretations by courts of other jurisdictions ..............86 2.3.3.2 Challenges in interpretation by Kosovo courts .........................................91 2.3.3.3 Challenges in interpretation by arbitral tribunals .....................................93 CONCLUSION ....................................................................................................................................96 APPENDIX ONE (1) – CONSOLIDATED RESULTS OF QUESTIONNAIRES AND INTERVIEWS WITH JUDGES & LAW PRACTITIONERS .................................................100 APPENDIX TWO (2) – CONSOLIDATED RESULTS OF QUESTIONNAIRES WITH ARBITRATORS ............................................................................................................108 LIST OF ABBREVIATIONS ............................................................................................................116 BIBLIOGRAPHY ..............................................................................................................................118 ANNEX 1 – SJD QUESTIONNAIRE ...............................................................................................130 ANNEX 2 – SJD QUESTIONNAIRE ...............................................................................................132 ANNEX 3 – REGULATION NO. 2000/68 ON CONTRACTS FOR THE SALE OF GOODS .....................................................................................................................................134 ANNEX 4 – LAW NO. 04/L-077 ON OBLIGATIONAL RELATIONSHIPS ...............................153 ANNEX 5 – VIENNA CONVENTION ON SUCCESSION OF STATES IN RESPECT OF TREATIES ........................................................................................................154 ANNEX 6 – KOSOVO DECLARATION OF INDEPENDENCE ...................................................162 ANNEX 7 – CONSTITUTION OF THE REPUBLIC OF KOSOVO ..............................................163 vi ANNEX 8 – SAMPLE NOTICE OF SUCCESSION (I)...................................................................165 ANNEX 9– SAMPLE NOTICE OF SUCCESSION (II) ..................................................................166 ANNEX 10 – SAMPLE INSTRUMENTS OF RATIFICATION, ACCESSION AND SUCCESSION BY THE ICRC .................................................................................................167 vii LIST OF TABLES Table 1. CONSOLIDATED RESULTS OF QUESTIONNAIRES AND INTERVIEWS WITH JUDGES & LAW PRACTITIONERS .................................................100 Table 2. CONSOLIDATED RESULTS OF QUESTIONNAIRES WITH ARBITRATORS .......................................................................................................................108 viii PREFACE The completion of this dissertation has been a very long journey. One of the joys of completion, apart from achieving a life-long dream, is to look over the journey of the past and remember all those who have inspired and supported me along these five long years. I am extremely grateful to my Mentor, Professor Harry Flechtner for his valuable guidance, scholarly input and consistent encouragement I received throughout the research work and writing this dissertation. He spent his valuable time with my drafts in order
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