CASE OF ALIŠIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA, CROATIA, SERBIA, SLOVENIA AND "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Serbia);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Slovenia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Serbia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Slovenia);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Non-pecuniary damage - award
Lech Garlicki;Mirjana Lazarova Trajkovska;Nicolas Bratza
6. The applicants were born in 1976, 1949 and 1952, respectively, and live in Germany. 7. Before the dissolution of the Socialist Federal Republic of Yugoslavia (“the SFRY”), Ms Ališić and Mr Sadžak deposited foreign currency in the then Ljubljanska Banka Sarajevo and Mr Šahdanović in the Tuzla branch of Investbanka. It would appear that the balance in their accounts is 4,715.56 German marks (DEM), DEM 129,874.30 and DEM 63,880.44, respectively. Mr Šahdanović also has 73 US dollars (USD) and 4 Austrian schillings in his accounts. 8. Until the 1989/90 economic reforms, the commercial banking system consisted of basic and associated banks. Basic banks were as a rule founded and controlled by socially owned companies based in the same territorial unit (that is, in one of the Republics – Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia – or Autonomous Provinces – Kosovo and Vojvodina). The founders of Ljubljanska Banka Sarajevo were thus 16 socially owned companies from Bosnia and Herzegovina (such as Energoinvest Sarajevo, Gorenje Bira Bihać, Šipad Sarajevo, Velepromet Visoko, Đuro Salaj Mostar) and Pamučni kombinat Vranje from Serbia. At least two basic banks could form an associated bank, while preserving their separate legal personality. In 1978 Ljubljanska Banka Sarajevo, Ljubljanska Banka Zagreb, Ljubljanska Banka Skopje and some other basic banks thus founded an associated bank – Ljubljanska Banka Ljubljana. Similarly, in 1978 Investbanka and a number of other basic banks founded Beogradska udružena Banka Beograd. In the SFRY there were approximately 150 basic and 9 associated banks (Jugobanka Beograd, Beogradska Udružena Banka, Privredna Banka Sarajevo, Vojvođanska Banka Novi Sad, Kosovska Banka Priština, Udružena Banka Hrvatske Zagreb, Ljubljanska Banka Ljubljana, Stopanska Banka Skopje and Investiciona Banka Titograd). 9. Being hard-pressed for hard currency, the SFRY made it attractive for its expatriates and other citizens to deposit foreign currency with its banks. Such deposits earned high interest (the annual interest rate often exceeded 10%). Moreover, they were guaranteed by the State (see section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989). The State guarantee was to be activated in case of the bankruptcy or “manifest insolvency” of a bank at the request of the bank (section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and the relevant secondary legislation). None of the banks under consideration in the present case made such a request. It should be emphasised that savers could not request the activation of the guarantee on their own. They were nevertheless entitled, in accordance with the Civil Obligations Act 1978, to collect their deposits at any time, together with accrued interest, from basic banks (see sections 1035 and 1045 of that Act). 10. Beginning in the mid 1970s, the commercial banks incurred foreignexchange losses because the dinar exchange rate depreciated. In response, the SFRY set up a system for “redepositing” of foreign currency, allowing commercial banks to transfer citizens’ foreign-currency deposits to the National Bank of Yugoslavia (“the NBY”), which assumed the currency risk (see section 51(2) of the Foreign-Currency Transactions Act 1977). Although the system was optional, commercial banks did not have another option as they were not allowed to maintain foreign-currency accounts with foreign banks, as was necessary to make payments abroad, nor were they allowed to grant foreign-currency loans. Virtually all foreign currency was therefore redeposited with the NBY. It should be emphasised, however, that only a fraction of that money was physically transferred to the NBY (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, 3 October 2008; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). 11. With regard to Ljubljanska Banka Sarajevo, the redepositing scheme functioned as follows. Pursuant to a series of agreements between that bank, Ljubljanska Banka Ljubljana, the National Bank of Bosnia and Herzegovina and the National Bank of Slovenia, Ljubljanska Banka Sarajevo had to ship on a monthly basis any difference between foreign currency deposited and foreign currency withdrawn to the National Bank of Slovenia. The foreign currency so shipped was recorded as a claim of Ljubljanska Banka Sarajevo against the NBY. The Slovenian Government maintained in the present case that the National Bank of Slovenia then shipped all those funds to the NBY, but they failed to provide any proof in that regard. They proved only that a part of those funds had been shipped back to Ljubljanska Banka Sarajevo at the request of that bank to meet its liquidity needs (in the period when more foreign currency was withdrawn than deposited). The exact figures are: in 1984 DEM 57,389, 894 was shipped to Ljubljana and DEM 150,187 back to Sarajevo; in 1985 DEM 59,465,398 was shipped to Ljubljana and DEM 71,270 back to Sarajevo, in 1986 DEM 19,794,416 was shipped to Ljubljana and DEM 1,564,823 back to Sarajevo, and so on. In total, between 1984 and 1991 DEM 244,665,082 was shipped to Ljubljana and DEM 41,469,528 (that is, less than 17%) back to Sarajevo. 12. Another relevant factor is that basic banks were granted dinar loans (initially, interest-free) by the NBY in return for the value of the redeposited foreign currency. The dinars so received were used by basic banks to give credits, at interest rates below the rate of inflation, to companies based, as a rule, in the same territorial unit (for instance, in the case of Ljubljanska Banka Sarajevo, such credits were given to Polietilenka Bihać, Gorenje Bira Bihać, Šipad Šator Glamoč, Bilećanka Bileća, UPI Sarajevo, Soko Komerc Mostar, Rudi Čajavec Banja Luka, Velepromet Visoko, and so on). 13. In 1988 the redepositing system was brought to an end (by virtue of section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988). Banks were given permission to open foreign-currency accounts with foreign banks. Ljubljanska Banka Sarajevo, like other banks, seized that opportunity and deposited in total USD 13.5 million with foreign banks in the period from October 1988 until December 1989. 14. Within the framework of the 1989/90 reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the former associated banks to which they had formerly belonged. On 1 January 1990 Ljubljanska Banka Sarajevo thus became a branch (without legal personality) of Ljubljanska Banka Ljubljana and the latter took over the former’s rights, assets and liabilities. By contrast, Investbanka became an independent bank with its headquarters in Serbia and a number of branches in Bosnia and Herzegovina (including the Tuzla branch at which Mr Šahdanović had accounts). Moreover, the convertibility of the dinar was declared and very favourable exchange rates were fixed by the NBY. It led to a massive withdrawal of foreign currency from commercial banks. The SFRY therefore resorted to emergency measures restricting to a large extent the withdrawals of foreign-currency deposits. For example, as of December 1990, when section 71 of the Foreign-Currency Transactions Act 1985 was amended, savers could use their savings only to pay for imported goods or services for their own or close relatives’ needs, to purchase foreign-currency bonds, to make testamentary gifts for scientific or humanitarian purposes, or to pay for life insurance with a local insurance company (before, they could use their deposits also to pay for goods and services abroad). In addition, section 3 of a decision of the SFRY Government of April 1991, which was in force until 8 February 1992, and section 17c of a decision of the NBY of January 1991, which the Constitutional Court of the SFRY declared unconstitutional on 22 April 1992, limited the amount which savers could withdraw or use for the above purposes to DEM 500 at a time, but not more than DEM 1,000 per month. 15. The SFRY disintegrated in 1991/92. In the successor States, foreign currency deposited beforehand is customarily referred to as “old” or “frozen” foreign-currency savings. 16. In 1992 Bosnia and Herzegovina took over the statutory guarantee for “old” foreign-currency savings from the SFRY (see section 6 of the SFRY Legislation Application Act 1992). Although the relevant statutory provisions were not clear in that regard, the National Bank of Bosnia and Herzegovina held that the guarantee covered “old” foreign-currency savings in domestic banks only (see its report 63/94 of 8 August 1994). 17. While during the war all “old” foreign-currency savings remained frozen, withdrawals were exceptionally allowed on humanitarian grounds and in some other special cases (see the relevant secondary legislation). 18. After the 1992-95 war, each of the Entities (the Federation of Bosnia and Herzegovina – “the FBH” – and the Republika Srpska) enacted its own legislation on “old” foreign-currency savings. Only the FBH legislation is relevant in the present case, given that the branches in issue are situated in that Entity. In 1997 the FBH assumed liability for “old” foreign-currency savings in banks and branches placed in its territory (see section 3(1) of the Claims Settlement Act 1997 and the Non-Residents’ Claims Settlement Decree 1999). Such savings remained frozen, but they could be used to purchase State-owned flats and companies under certain conditions (section 18 of the Claims Settlement Act 1997, as amended in August 2004). 19. In 2004 the FBH enacted new legislation. It undertook to repay “old” foreign-currency savings in domestic banks in that Entity, regardless of the citizenship of the depositor concerned. Its liability for such savings in the branches of Ljubljanska Banka Ljubljana and Investbanka were expressly excluded (see section 9(2) of the Settlement of Domestic Debt Act 2004). 20. In 2006 the liability for “old” foreign-currency savings in domestic banks passed from the Entities to the State. Liability for such savings at the local branches of Ljubljanska Banka Ljubljana and Investbanka are again expressly excluded, but the State must help the clients of those branches to obtain the payment of their savings from Slovenia and Serbia, respectively (see section 2 of the Old Foreign-Currency Savings Act 2006). In addition, all proceedings concerning “old” foreign-currency savings ceased by virtue of law (see section 28 of that Act; that provision was declared constitutional by decision U 13/06 of the Constitutional Court of Bosnia and Herzegovina of 28 March 2008, § 35). The Constitutional Court has examined numerous individual complaints about the failure of Bosnia and Herzegovina and its Entities to pay back “old” foreign-currency savings at the domestic branches of Ljubljanska Banka Ljubljana and Investbanka: it held that neither Bosnia and Herzegovina nor its Entities were liable and ordered instead the State to help the clients of those branches to recover their savings from Slovenia and Serbia, respectively (see, for example, decisions AP 164/04 of 1 April 2006, AP 423/07 of 14 October 2008 and AP 14/08 of 21 December 2010). 21. In 1990 Ljubljanska Banka Sarajevo became a branch, without legal personality, of Ljubljanska Banka Ljubljana and the latter took over the former’s rights, assets and liabilities. Pursuant to the companies register, the Sarajevo branch acted on behalf and for the account of the parent bank. On 31 December 1991 the amount of foreign-currency savings at the Sarajevo branch was approximately DEM 250,000,000, but it would appear that less than DEM 350,000 was in the vault of the Sarajevo branch on that date. While it is unclear what happened with the remaining sum, it is likely that most of it ended up in Slovenia (see paragraph 11 above). 22. A domestic bank, Ljubljanska Banka Sarajevo, was set up in 1993. It assumed Ljubljanska Banka Ljubljana’s liability for “old” foreign-currency savings at the Sarajevo branch. In 1994 the National Bank of Bosnia and Herzegovina carried out an inspection and noted many shortcomings. First of all, its management had not been properly appointed and it was not clear who its shareholders were. The National Bank therefore appointed a director of Ljubljanska Banka Sarajevo. Secondly, as a domestic bank, Ljubljanska Banka Sarajevo could not have assumed a foreign bank’s liability for “old” foreign-currency savings, as this would impose new financial obligations on the State (as the State was the statutory guarantor for “old” foreign-currency savings in all domestic banks). The National Bank ordered that a closing balance sheet for the Sarajevo branch of Ljubljanska Banka Ljubljana as at 31 March 1992 be drawn up urgently and that its relations with the parent bank be defined. However, according to the companies register, Ljubljanska Banka Sarajevo had remained liable for “old” foreign-currency savings at Ljubljanska Banka Ljubljana’s Sarajevo branch until November 2004 (see paragraph 24 below). Accordingly, it continued to administer the savings of clients of the Sarajevo branch; those savings were used in the privatisation process in the FBH (see paragraph 18 above); and a domestic court ordered Ljubljanska Banka Sarajevo to pay those savings in one case (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006). 23. In 2003 the FBH Banking Agency placed that domestic bank under its provisional administration for the reason that it had undefined relations with the foreign Ljubljanska Banka Ljubljana. 24. By virtue of an amendment to the Companies Register Act 2000, in 2003 the FBH Parliament extended the statutory time-limit for the deletion of war-time entries in the companies register until 10 April 2004. Shortly thereafter, in November 2004 the Sarajevo Municipal Court decided that the domestic Ljubljanska Banka Sarajevo was not the successor of the Sarajevo branch of the foreign Ljubljanska Banka Ljubljana; that it was not liable for “old” foreign-currency savings in that branch; and that, as a result, the 1993 entry in the companies register stating otherwise must be deleted. 25. In 2006 the domestic Ljubljanska Banka Sarajevo sold its assets and let out premises and equipment belonging to Ljubljanska Banka Ljubljana’s Sarajevo branch to a Croatian company which, in return, undertook to pay debts of Ljubljanska Banka Sarajevo. While endorsing that agreement, the FBH Government emphasised that all premises and archives of Ljubljanska Banka Ljubljana’s Sarajevo branch remained under the care of the FBH Government pending the final determination of the status of that branch. 26. In 2010 the competent court started bankruptcy proceedings against the domestic Ljubljanska Banka Sarajevo. They are still pending. 27. The Tuzla branch of Investbanka has at all times had the status of a branch without legal personality. The size of “old” foreign-currency savings at that branch was approximately USD 67 million (approximately DEM 100 million) on 31 December 1991. The branch closed on 1 June 1992 and it has never resumed its activities. It is unclear what happened with its funds, but given the manner in which the redepositing scheme was administered (see paragraph 11 above), it is likely that most of them ended up in Serbia. 28. In 2002 the competent court in Serbia made a bankruptcy order against Investbanka. The Serbian authorities then sold the premises of the FBH branches of Investbanka (those in the Republika Srpska had been sold in 1999). The bankruptcy proceedings are still pending. 29. In 2010 the FBH Government placed the premises and archives of the FBH branches of Investbanka under its care, but it would appear that Investbanka no longer has any premises or archives in the FBH. 30. In 2011, at the request of the FBH authorities, the Serbian authorities started a criminal investigation into the manner in which the archives of the Tuzla branch had been transferred to the Serbian territory in 2008. 31. The Croatian Government argued that they had repaid “old” foreign-currency savings in domestic banks and their foreign branches, regardless of the citizenship of the depositor concerned. Indeed, it is clear that they repaid such savings of Bosnian-Herzegovinian citizens in Bosnian-Herzegovinian branches of Croatian banks. However, the Slovenian Government provided decisions of the Supreme Court of Croatia (Rev 3015/1993-2 of 1994, Rev 3172/1995-2 of 1996 and Rev 1747 /1995-2 of 1996) holding that the term used in that legislation (građanin) meant a Croatian citizen and argued that it was not excluded that the Bosnian-Herzegovinian citizens in issue were also Croatian citizens or that an ad hoc agreement had been concluded. 32. Croatia also repaid its citizens’ “old” foreign-currency savings which had been transferred from Ljubljanska Banka Ljubljana’s Zagreb branch to domestic banks at the request of the depositors concerned (see section 14 of the Old Foreign-Currency Savings Act 1993 and the relevant secondary legislation). Apparently, about two thirds of all clients of that branch used that possibility. As to its remaining clients, whose “old” foreign-currency savings allegedly amount to approximately DEM 300 million, some of them have pursued civil proceedings in the Croatian courts and 63 of them have obtained their “old” foreign-currency savings from a forced sale of assets of that branch located in Croatia (decisions of the Osijek Municipal Court of 8 April 2005 and 15 June 2010). Some others are pursuing civil proceedings in the Slovenian courts (see paragraph 38 below). 33. In the direct aftermath of the dissolution of the SFRY, “old” foreigncurrency savings in domestic banks remained frozen, but withdrawals were exceptionally allowed on humanitarian grounds regardless of the citizenship of the depositor concerned (see the relevant secondary legislation). 34. In 1998 and then again in 2002 Serbia agreed to repay “old” foreign-currency savings in domestic branches of domestic banks of its citizens and of citizens of all States other than the successor States of the SFRY. All savings of citizens of the SFRY successor States and all savings in domestic banks’ branches located in those States remained frozen pending succession negotiations. Moreover, all proceedings concerning “old” foreign-currency savings ceased by virtue of law in accordance with sections 21 and 22 of the Old Foreign-Currency Savings Act 1998 and sections 21 and 36 of the Old Foreign-Currency Savings Act 2002. 35. In January 2002 the competent court in Serbia made a bankruptcy order against Investbanka. As a result, the State guarantee on “old” foreigncurrency savings was activated (section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and section 135 of the ForeignCurrency Transactions Act 1995). 322 clients of BosnianHerzegovinian branches of Investbanka unsuccessfully applied to be paid back within the context of the bankruptcy proceedings; 20 of them then pursued civil proceedings against Investbanka, but to no avail. The bankruptcy proceedings are still pending. 36. In 1991 Slovenia assumed the statutory guarantee from the SFRY for “old” foreign-currency savings in domestic branches of all banks, regardless of the citizenship of the depositor concerned (see Article 19 § 3 of the Basic Constitutional Charter Constitutional Act 1991 and section 1 of the Old Foreign-Currency Savings Act 1993). While, as a rule, anyone who shows legal interest may petition that abstract constitutionality review proceedings be initiated (section 24 of the Constitutional Court Act 2007), the Slovenian Constitutional Court held that the Basic Constitutional Charter Constitutional Act 1991 was not subject to such a review (see its decisions nos. U-I-332/94 of 11 April 1996 and U-I-184/96 of 20 June 1996). 37. After futile attempts to register the Sarajevo branch of Ljubljanska Banka Ljubljana as a separate bank (see the correspondence between the NBY and the National Bank of Bosnia and Herzegovina of October 1991 stressing the unlawfulness of such proposals as Slovenia had meanwhile become an independent State and Ljubljanska Banka Ljubljana a foreign bank), Slovenia nationalised and then, in 1994, restructured Ljubljanska Banka Ljubljana itself. A new bank, Nova Ljubljanska Banka, took over Ljubljanska Banka Ljubljana’s domestic assets and liabilities. The old bank retained the liability for “old” foreign-currency savings in its branches in the other successor States and the related claims against the NBY. 38. In 1997 all proceedings concerning “old” foreign-currency savings in the old Ljubljanska Banka’s branches in the other successor States were stayed pending the outcome of the succession negotiations. In December 2009 the Constitutional Court of Slovenia, upon a constitutional petition of two Croatian savers, declared that measure unconstitutional. The Ljubljana District Court has thereafter rendered numerous judgments ordering the old Ljubljanska Banka to pay “old” foreign-currency savings in its Sarajevo and Zagreb branches together with interest. It held that the relationship between the old Ljubljanska Banka and its clients at those branches was of a privatelaw nature. The fact that some foreign currency had allegedly been shipped to the NBY and that succession negotiations were pending was considered irrelevant. Similarly, it considered irrelevant the decisions regarding the status of the Sarajevo branch set out in paragraphs 22-24 above. At least one such judgment, concerning the Sarajevo branch, has become final (judgment P 119/1995-I of 16 November 2010). A number of clients of the Sarajevo and Zagreb branches have pursued civil proceedings also against the Republic of Slovenia, but in vain. The Ljubljana District Court has rejected such claims in three cases (as no appeals have been lodged, those decisions have become final). Around 10 similar cases are apparently still pending. 39. It paid back “old” foreign-currency savings in domestic banks and local branches of foreign banks, such as the Skopje branch of Ljubljanska Banka Ljubljana, regardless of the citizenship of the depositor concerned. 40. The matter of State succession is regulated by customary rules, partly codified in the 1978 Vienna Convention on Succession of States in respect of Treaties and the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts. Although the latter treaty is not yet in force and only three respondent States are parties to it as of today (Croatia, Slovenia and the former Yugoslav Republic of Macedonia), it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either codifying it or forming a new customary rule (see Cudak v. Lithuania [GC], no. 15869/02, § 66, ECHR 2010, and judgment of the International Court of Justice in the North Sea Continental Shelf Cases of 20 February 1969, § 71). 41. The fundamental rule is that States must together settle all aspects of succession by agreement (see Opinion No. 9 of the Arbitration Commission of the International Conference on the Former Yugoslavia, and Article 6 of the 2001 Guiding Principles on State Succession in Matters of Property and Debts of the Institute of International Law). If one of the States refused to cooperate, it would be in breach of that obligation and would be liable internationally (Opinion No. 12 of the Arbitration Commission). While it is not required that each category of property and debts of a predecessor State be divided in equitable proportions, an overall outcome must be an equitable division (Article 41 of the 1983 Vienna Convention; Opinion No. 13 of the Arbitration Commission; Articles 8, 9 and 23 of the Guiding Principles). 42. This Agreement was the result of nearly ten years of negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative (an international administrator appointed under Annex 10 to the General Framework Agreement for Peace in Bosnia and Herzegovina). It was signed on 29 June 2001 and entered into force between Bosnia and Herzegovina, Croatia, Serbia and Montenegro (later succeeded by Serbia), Slovenia and the former Yugoslav Republic of Macedonia on 2 June 2004. 43. The issue of “old” foreign-currency savings was a contentious one. The successor States had different views as to whether that issue should be dealt with as a liability of the SFRY under Annex C (Financial Assets and Liabilities) or as a private-law issue under Annex G (Private Property and Acquired Rights). Neither could those States agree whether the guarantees of the SFRY of “old” foreign-currency savings should be taken over by the State in which the parent bank in issue had its head office or by the State in which the deposit had actually been made. The following provisions were eventually included in Annex C to the Agreement: “Other financial liabilities [of the SFRY] include: (a) guarantees by the SFRY or its National Bank of Yugoslavia of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed independence; ...” “Guarantees by the SFRY or its NBY of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed its independence shall be negotiated without delay taking into account in particular the necessity of protecting the hard currency savings of individuals. This negotiation shall take place under the auspices of the Bank for International Settlements.” 44. In 2001/2 four rounds of negotiations regarding the distribution of the SFRY’s guarantees of “old” foreign-currency savings were held. As the successor States could not reach an agreement, in September 2002 the Bank for International Settlements (“the BIS”) informed them that the expert, Mr Meyer, had decided to terminate his involvement in the matter and that the BIS had no further role to play in this regard. It concluded as follows: “If, however, all five successor States were to decide at a later stage to enter into new negotiations about guarantees of hard currency savings deposits and were to seek the BIS’ assistance in this regard, the BIS would be prepared to give consideration to providing such assistance, under conditions to be agreed.” It appears that four successor States (all but Croatia) notified the BIS of their willingness to continue the negotiations shortly thereafter. Croatia did so in October 2010 and received a response in November 2010 which, in so far as relevant, reads as follows: “...the BIS did recently reconsider this issue and believes that its contribution to any new round of negotiations, as part of a good offices role, could not bring added value, also bearing in mind the amount of time which lapsed since the last round of negotiations, as well as its current priorities in the field of monetary and financial stability. However, we would like to emphasise that the organisation of the bi-monthly meetings in Basel offers the practical opportunity for the governors of the successor States to discuss this matter between them on an informal basis at the BIS.” 45. It should be noted that a comparable issue of the SFRY’s guarantees of savings deposited with the Post Office Savings Bank and its branches had been settled outside the negotiations of the Agreement on Succession Issues, in that each of the States had taken over the guarantees as to the branches in its territory. 46. In accordance with Article 4 of the Agreement on Succession Issues, a Standing Joint Committee of senior representatives of the successor States was established to monitor the effective implementation of the Agreement and to serve as a forum in which issues arising in the course of its implementation could be discussed. It has so far met three times: in 2005, in 2007 and in 2009. 47. The following provisions of this Agreement are also relevant in this case: “(1) Differences which may arise over the interpretation and application of this Agreement shall, in the first place, be resolved in discussion among the States concerned. (2) If the differences cannot be resolved in such discussions within one month of the first communication in the discussion the States concerned shall either (a) refer the matter to an independent person of their choice, with a view to obtaining a speedy and authoritative determination of the matter which shall be respected and which may, as appropriate, indicate specific time-limits for actions to be taken; or (b) refer the matter to the Standing Joint Committee established by Article 4 of this Agreement for resolution. (3) Differences which may arise in practice over the interpretation of the terms used in this Agreement or in any subsequent agreement called for in implementation of the Annexes to this Agreement may, additionally, be referred at the initiative of any State concerned to binding expert solution, conducted by a single expert (who shall not be a national of any party to this Agreement) to be appointed by agreement between the parties in dispute or, in the absence of agreement, by the President of the Court of Conciliation and Arbitration within the OSCE. The expert shall determine all questions of procedure, after consulting the parties seeking such expert solution if the expert considers it appropriate to do so, with the firm intention of securing a speedy and effective resolution of the difference. (4) The procedure provided for in paragraph (3) of this Article shall be strictly limited to the interpretation of terms used in the agreements in question and shall in no circumstances permit the expert to determine the practical application of any of those agreements. In particular the procedure referred to shall not apply to (a) The Appendix to this Agreement; (b) Articles 1, 3 and 4 of Annex B; (c) Articles 4 and 5(1) of Annex C; (d) Article 6 of Annex D. (5) Nothing in the preceding paragraphs of this Article shall affect the rights or obligations of the Parties to the present Agreement under any provision in force binding them with regard to the settlement of disputes.” “This Agreement shall be implemented by the successor States in good faith in conformity with the Charter of the United Nations and in accordance with international law.” 48. The obligation flowing from a pactum de negotiando, to negotiate with a view to concluding an agreement, must be fulfilled in good faith according to the fundamental principle pacta sunt servanda. 49. The International Court of Justice stated in its judgment of 20 February 1969 in the North Sea Continental Shelf Cases (§ 85): “...the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modifications of it...” 50. The decision of the Arbitral Tribunal for the Agreement on German External Debts in the case of Greece v. the Federal Republic of Germany of 26 January 1972 reads, in so far as relevant, as follows (§§ 62-65): “However, a pactum de negotiando is also not without legal consequences. It means that both sides would make an effort, in good faith, to bring about a mutually satisfactory solution by way of a compromise, even if that meant the relinquishment of strongly held positions earlier taken. It implies a willingness for the purpose of negotiation to abandon earlier positions and to meet the other side part way. The language of the Agreement cannot be construed to mean that either side intends to adhere to its previous stand and to insist upon the complete capitulation of the other side. Such a concept would be inconsistent with the term ‘negotiation’. It would be the very opposite of what was intended. An undertaking to negotiate involves an understanding to deal with the other side with a view to coming to terms. Though the Tribunal does not conclude that Article 19 in connection with paragraph II of Annex I absolutely obligates either side to reach an agreement, it is of the opinion that the terms of these provisions require the parties to negotiate, bargain, and in good faith attempt to reach a result acceptable to both parties and thus bring an end to this long drawn out controversy... The agreement to negotiate the disputed monetary claims, in this case, necessarily involves a willingness to consider a settlement. This is true, even though the dispute extends not only to the amount of the claims but to their existence as well. The principle of settlement is not thereby affected. Article 19 does not necessarily require that the parties resolve the various legal questions on which they have disagreed. For example, it does not contemplate that both sides are expected to see eye to eye on certain points separating them, such as whether the disputed claims legally exist or not, or whether they are government or private claims. As to these points, the parties, in effect, have agreed to disagree but, notwithstanding their contentions with regard to them, they did commit themselves to pursue negotiations as far as possible with a view to concluding an agreement on a settlement... The Tribunal considers that the underlying principle of the North Sea Continental Shelf Cases is pertinent to the present dispute. As enunciated by the International Court of Justice, it confirms and gives substance to the ordinary meaning of ‘negotiation’. To be meaningful, negotiations have to be entered into with a view to arriving at an agreement. Though, as we have pointed out, an agreement to negotiate does not necessarily imply an obligation to reach an agreement, it does imply that serious efforts towards that end will be made.”